MODELS OF CROSS-BORDER EVIDENCE GATHERING IN …

University of Zagreb

Faculty of Law

University of Freiburg

Faculty of Law

Zoran Burić

MODELS OF CROSS-BORDER EVIDENCE GATHERING IN

EUROPEAN UNION CRIMINAL LAW

INTERNATIONAL DUAL DOCTORATE

Supervisors:

Prof. Zlata Đurđević, DSc Prof. Ulrich Sieber, DSc

Zagreb, 2015

Dean: Professor Dr. Matthias Jestaedt

First reviewer: Professor Dr. Dr. h.c. mult. Ulrich Sieber

Second reviewer: Professor Dr. Dr. h.c. mult. Hans-Jörg Albrecht

Place(s) of dissertation: Freiburg and Zagreb, Cotutelle

Date of Oral examination: 3 February 2016

Year of publication of the dissertation: 2021

Sveučilište u Zagrebu

Pravni fakultet

Sveučilište u Freiburgu

Pravni fakultet

Zoran Burić

MODELI PREKOGRANIČNOGA PRIKUPLJANJA DOKAZA U

KAZNENOM PRAVU EUROPSKE UNIJE

MEĐUNARODNI DVOJNI DOKTORAT ZNANOSTI

Mentori:

Prof. dr. sc. Zlata Đurđević Prof. dr. sc. Ulrich Sieber

Zagreb, 2015.

SUPERVISORS

Prof. dr. sc. Zlata Đurđević is a professor of criminal procedural law at the University of

Zagreb Faculty of Law. Areas of her special professional interest are criminal procedural law,

European Union criminal law, human rights and criminal justice, and psychiatry and law. She

is a member of the Executive committee of the International association for criminal law and

a contact person in the Academic network for European Union criminal law.

Prof. Dr. Dr. h.c. mult. Ulrich Sieber is a director at the Max Planck Institute for Foreign

and International Criminal Law in Freiburg, Germany and an honorary professor and faculty

member at the law faculties of the University of Freiburg and the University of Munich. He is

an advisory professor at the law departments of Renmin University of China, the Beijing

Normal University, China, and the Wuhan University, China.

SUMMARY

The goal of the research is to analyze and evaluate different applied and proposed models of

cross-border evidence gathering in European Union criminal law. Its starting hypothesis is

that European Union Criminal Law needs a model of cross-border evidence gathering that is

going to take into account and adequately balance the interests of all the actors involved in the

process of cross-border evidence gathering: the cooperating States, the individual affected,

and the EU. Primary object of the analysis and evaluation are the traditional cooperation

model – mutual legal assistance model, and the modern, EU specific, model – mutual

recognition model. Next to them, other proposed alternative models of cross-border evidence

gathering are also analyzed and evaluated.

In order to achieve its goal, the research uses the following methods which are characteristic

for legal sciences: the theoretical method, the normative method, the comparative method, and

the case study method. Theoretical method is used to provide a better understanding of the

historical background and the main principles of different models. The normative method is

used in order to analyze the provisions of the legal instruments which govern the area. When

the normative analysis is conducted, the respective legal instruments are looked at from three

different perspectives: the position of the requesting/issuing State, the position of the

requested/executing State, and the position of the individual concerned. The comparative

method is used to present the differences between the models. The case study method is used

in order to analyze the practical functioning of the models.

The result of the research can be summarized as follows: 1. the traditional cooperation model

– the mutual legal assistance model - can not answer the challenges posed before cross-border

evidence gathering by the increase of transnational criminal activities, 2. the mutual

recognition model is a better solution, both on the theoretical, and on the normative level,

because it is more successful in balancing the interests of all the actors involved in the

process; 3. the mutual recognition model would function much better in the surrounding of

harmonized national criminal laws, 4. it is also possible to develop the elements of a

supranational legal order in the selected areas, 5. different models can be applied and

combined at the same time.

Key words: cross-border evidence gathering, European Union criminal law, mutual legal

assistance, mutual recognition, European Evidence Warrant, European Investigation Order,

Office of the European Public Prosecutor

SAŽETAK

Sažetak se sastoji od pet dijelova i u njemu su predstavljeni: 1. Predmet istraživanja, 2. Ciljevi

istraživanja, 3. Metodologija istraživanja, 4. Tijek istraživanja, i 5. Rezultati istraživanja

(zaključci).

1. Predmet istraživanja

Pitanje dokaza u kaznenom postupku jedno je od najkontroverznijih pitanja kaznenog prava

Europske unije u posljednjih dvadesetak godina i više. U tom je vremenskom razdoblju

usvojen niz pravnih instrumenta koji su nastojali odgovarajuće pravno urediti područje

kaznenopravne suradnje u pribavljanju dokaza. Dokazno pravo nije bilo samo prvorazredni

predmet zakonodavne aktivnosti, već je intenzivno zaokupljalo i znanstvenu i stručnu javnost.

Znanstvena se zajednica aktivno uključila u rasprave o budućnosti suradnje u području

dokazivanja u kaznenom pravu Europske unije. Kao posljedica zakonodavne i znanstvene

aktivnosti, predložen je niz mogućih pristupa ka rješavanju ovoga zamršenoga pitanja.

Međutim, usprkos svim tim nastojanjima, pitanje suradnje u pribavljanju dokaza i uporabe

tako pribavljenih dokaza u kaznenim postupcima država članica još uvijek nije riješeno na

odgovarajući način. Ovakvo stanje zahtijeva provođenje sustavne analize mogućih pristupa ka

rješenju ovoga pitanja, njihovu usporedbu i evaluaciju.

Kada se govori o prekograničnom prikupljanju dokaza za potrebe kaznenog postupka u okviru

kaznenog prava Europske unije, onda se ta tema može promatrati kroz širu perspektivu – kroz

nastojanje da se kazneno pravo Europske unije pretvori u transnacionalno učinkovito kazneno

pravo. Potreba za stvaranjem kaznenog prava koje će biti transnacionalno učinkovito

posljedica je izazova s kojima su susreće suvremeno kazneno pravo, čiji su učinci teritorijalno

ograničeni, u nastojanju da učinkovito suzbije kriminale aktivnosti, koje sve više postaju

transnacionalne (regionalne i globalne). Transnacionalno učinkovito kazneno pravo može se

stvoriti na dva načina, uporabom dvaju modela – modela kooperacije nacionalnih

kaznenopravnih poredaka, ili modela izgradnje supranacionalnog pravnog poretka. Između tih

dvaju idealnih modela postoji i niz prijelaznih oblika koji u različitoj mjeri kombiniraju

elemente jednog i drugog idealnog modela. U kooperacijskom modelu transnacionalno

kazneno pravo izgrađuje se kroz dijalog nacionalnih kaznenopravnih poredaka koji dijele

zajednički interes u progonu transnacionalnih kriminalnih aktivnosti. S druge strane,

supranacionalni model karakterizira izgradnja novog pravnog poretka čiji su nositelji

organizacije koje su veće od nacionalnih država. Oba modela ili njihovi elementi mogu se

koristiti i za izgradnju kaznenog prava Europske unije i poslužiti kao osnova za rješenje

pitanja dokazivanja u kaznenom pravu Europske unije.

Suradnja u prekograničnom pribavljaju dokaza u kaznenom pravu Europske unije trenutno je

uređena pravilima koja se temelje na dvama modelima pravosudne suradnje u kaznenim

stvarima. Prva grupa pravila temelji se na modelu uzajamne pravne pomoći, a druga grupa

pravila na modelu uzajamnoga priznanja. Model uzajamne pravne pomoći tradicionalni je

model pravosudne suradnje u kaznenim stvarima. Radi se o modelu koji je u europskom

kontekstu razvijen u okvirima Vijeća Europe, odakle je preuzet u kazneno pravo Europske

unije i prilagođen njegovim posebnim potrebama intenzivnije pravosudne suradnje. Osim

nastojanja da model uzajamne pravne pomoći prilagodi svojim potrebama, kazneno pravo

Europske unije je istodobno krenulo i drugim kolosijekom kroz razvijanje vlastitog modela

pravosudne suradnje u kaznenim stvarima – modela uzajamnog priznanja. Ovaj je model

izgrađen na ideji koja je, u okviru europskog integracijskog procesa, razvijena u pravu

unutarnjeg tržišta i pretpostavlja da razlike između nacionalnih pravnih poredaka ne smiju

predstavljati zapreku za postizanje zajedničkih europskih ciljeva. U području pravosudne

suradnje u kaznenim stvarima ona znači da odluka donesena od strane nadležnih pravosudnih

tijela jedne država članica u načelu mora biti priznata i izvršena od strane pravosudnih tijela

svake druge države članice, neovisno o razlikama koje postoje između njihovih nacionalnih

kaznenopravnih sustava. Ova dva modela primarni su predmet istraživanja u ovome radu.

Iako je istraživanje primarno usmjereno na model uzajamne pravne pomoći i model

uzajamnog priznanja, drugi mogući i predloženi modeli prekograničnog prikupljanja dokaza

također su predstavljeni i analizirani. Neki od predloženih modela ne ograničavaju se na

unapređenje suradnje između nacionalnih kaznenopravnih sustava (kooperacijski modeli), već

pretpostavljaju izgradnju elemenata supranacionalnog pravnog poretka (supranacionalni

modeli).

2. Ciljevi istraživanja

Razvoj kaznenog prava Europske unije općenito je karakteriziran intenziviranjem suradnje

nacionalnih kaznenopravnih poredaka izgrađene na modelu uzajamnog priznanja. Načelo

uzajamnog priznanja prihvaćeno je kao temelj pravosudne suradnje u kaznenim stvarima i

poslužilo je kao temelj europske integracije u kaznenopravnom području. Međutim,

nastojanja da model uzajamnog priznanja posluži kao osnovica pravosudne suradnje u

području prekograničnog pribavljanja dokaza pokazala su se izuzetno problematičnima. Sva

nastojanja da se suradnja u području dokaza utemelji na pravilima koja proizlaze iz načela

uzajamnog priznanja bila su suočena sa suprotnim tendencijama – naime, da suradnja u

području dokaza ostane izgrađena na temeljima koji proizlaze iz tradicionalnog modela

pravosudne suradnje u kaznenim stvarima, modela uzajamne pravne pomoći.

Opći je cilj ovoga istraživanja da analizira, usporedi i evaluira modele prekogranične suradnje

u pribavljanju dokaza. Njegova je polazišna hipoteza, koja služi i kao osnovica za razvoj

analitičkog oruđa, da se pravosudna suradnja u prekograničnom pribavljanju dokaza za

potrebe kaznenog postupka u kaznenom pravu Europske unije mora temeljiti na modelu koji

uzima u obzir i stavlja u ravnotežu interese svih sudionika tog postupka: država članica koje

surađuju, pojedinca i Europske unije. Opći se cilj istraživanja ostvaruje kroz traženje

odgovora na sljedeća istraživačka pitanja:

1. Može li model uzajamne pravne pomoći, koji se temelji na idejama državnog suvereniteta i

nacionalnog kaznenog prava, odgovoriti izazovima transnacionalnog kriminala u području

prekograničnog prikupljanja dokaza;

2. Je li uvođenje modela uzajamnog priznanja u područje prekograničnog prikupljanja dokaza

adekvatan odgovor na postavljene izazove;

3. Koji pomaci se mogu postići u ovom području kroz harmonizaciju kaznenih (procesnih)

prava država članica;

4. Je li i u kojoj mjeri potrebno razviti elemente supranacionalnog pravnog poretka;

5. Mora li postojati jedan „čisti“ model ili različiti modeli prekograničnog prikupljanja dokaza

mogu istovremeno koegzistirati i kombinirati se?

4. Metodologija istraživanja

Kako bi se ostvario cilj istraživanja i kako bi se dao odgovor na postavljena istraživačka

pitanja, istraživanje koristi sljedeće istraživačke metode koje su karakteristične za pravne

znanosti: teorijsku metodu, normativnu metodu, komparativnu metodu i metodu analize

slučaja.

Teorijska se metoda koristi u različitim dijelovima rada. U poglavljima II i III, u kojima su

predstavljeni i analizirani modeli uzajamne pravne pomoći i uzajamnog priznanja, ona se

koristi kako bi se predstavili povijesna pozadina i teorijski temelji modela. Uporabom

teorijske metode modeli se razmatraju kroz širi kontekst međunarodnog (kaznenog) i prava

Europske unije, kako bi se omogućilo bolje razumijevanje njihovih temeljnih načela. Na toj se

metodi temelji analiza dana u poglavlju V koje se bavi predloženim alternativnim modelima

prekograničnog prikupljanja dokaza u kaznenom pravu Europske unije.

U radu se koristi i normativna metoda kroz analizu pravnih pravila na kojima se temelji

prekogranično prikupljanje dokaza u modelu uzajamne pravne pomoći i modelu uzajamnog

priznanja. Pri provođenju normativne analize, a kako bi se omogućila evaluacija modela,

pravila sadržana u pravnim instrumentima razlažu se i analiziraju kroz tri različite

perspektive: perspektivu države članice u kojoj se vodi kazneni postupak, perspektivu država

članice na čijem se području dokazi nalaze, i perspektivu pojedinca i njegove obrane u

kaznenom postupku.

Metoda analize slučaja koristi se kako bi se analiziralo i evaluiralo funkcioniranje modela u

praktičnoj situaciji prekograničnog prikupljanja dokaza. Analizira se provođenje pretrage

doma u transnacionalnom kontekstu na primjeru suradnje između hrvatskih i njemačkih

nadležnih pravosudnih tijela.

Komparativna se metoda koristi kako bi se predstavile temeljne razlike između modela

uzajamne pravne pomoći i modela uzajamnog priznanja. Kao osnova za komparaciju koriste

se rezultati teorijske, normativne i analize provedene metodom slučaja.

4. Tijek istraživanja

Istraživanje je podijeljeno u šest poglavlja. Poglavlje I je Uvod, u kojem se daje obrazloženje

Predmeta istraživanja (I.), Ciljeva istraživanja (II.), Metodologije istraživanja (III.) i Tijeka

istraživanja (IV.).

U Poglavljima II i III modeli uzajamne pravne pomoći i uzajamnog priznanja se predstavljaju,

analiziraju i evaluiraju. Svako od ovih dvaju poglavlja podijeljeno je u dva dijela. U Dijelu I

svakog poglavlja analiziraju se teorijski temelji modela. U Dijelu II svakog poglavlja provodi

se normativna analiza pravnih pravila koja uređuju prekogranično prikupljanje dokaza u

kaznenom pravu Europske unije, a koja se temelje ili na modelu uzajamne pravne pomoći, ili

na modelu uzajamnog priznanja. Normativna je analiza podijeljena u tri cjeline: položaj

države moliteljice/države izdavanja, položaj zamoljene države/države izvršenja, i položaj

pojedinca. Obrazac normativne analize koja se provodi u Poglavlju III ne odgovara u

potpunosti obrascu koji je primjenjuje u Poglavlju II. Naime, dok se u normativnoj analizi u

Poglavlju II svi pravni instrumenti koji pripadaju modelu uzajamne pravne pomoći analiziraju

skupno i iznose se zajednički rezultati, u normativnoj analizi koja se provodi u Poglavlju III

najvažniji pravni instrumenti koji su uveli načelo uzajamnog priznanja u područje

prekograničnog prikupljanja dokaza – Okvirna odluka o europskom nalogu za pribavljanje

dokaza i Direktiva o europskom istražnom nalogu – analiziraju se odvojeno. Iako se takav

pristup može kritizirati, bio je nužan kako bi se provela jasna i sveobuhvatna prezentacija i

analiza posljednjeg i najvažnijeg pravnog instrumenta u području prekograničnog prikupljanja

dokaza u kaznenom pravu Europske unije, Direktive o europskom istražnom nalogu.

Direktiva je usvojena u travnju 2014. i do sada nije bila predmetom sveobuhvatne znanstvene

analize. Dakle, interesi metodološke čistoće žrtvovani su interesima jasne i sveobuhvatne

analize najrecentnijeg i najvažnijeg pravnog instrumenta u ovom izuzetno dinamičnom i

normativno nestabilnom području kaznenog prava Europske unije. Nadalje, odvojena

prezentacija i normativna analiza instrumenata uzajamne pravne pomoći nepotrebno bi

opteretila tekst rada. Ovi instrumenti, kako je istraživanje i pokazalo, slijede jednaki temeljni

pristup pravosudnoj suradnji u kaznenim stvarima i stoga predstavljaju stabilan i predvidljiv

metodološki režim. S druge strane, pravni instrumenti koji se temelje na načelu uzajamnog

priznanja pokazuju niz različitosti u načinu na koji primjenjuju temeljne postavke načela

uzajamnog priznanja i jasna prezentacija tih različitosti zahtijeva odvojenu analizu odnosnih

pravnih instrumenata.

U Poglavlju IV provodi se analiza slučaja. Cilj analize je predstavljanje praktičnog

funkcioniranja modela uzajamne pravne pomoći i modela uzajamnog priznanja na primjeru

pretrage doma. Analiza se provodi kroz prezentaciju suradnje između hrvatskih i njemačkih

nadležnih pravosudnih tijela. Ovo poglavlje započinje analizom pravnih režima za

poduzimanje pretrage doma u hrvatskom i njemačkom pravnom sustavu (I.). Nakon analize

pravnog režima, slijedi analiza provođenja pretrage doma u transnacionalnom kontekstu u

modelu uzajamne pravne pomoći i u modelu uzajamnog priznanja, na primjeru suradnje

između hrvatskih i njemačkih nadležnih pravosudnih tijela (II.).

Peto poglavlje posvećeno je prezentaciji i teorijskoj analizi drugih mogućih i predloženih

modela za prekogranično prikupljanje dokaza u kaznenom pravu Europske unije. Predmet

ovog dijela rada su tri modela: Model potpuno supranacionaliziranog kooperacijskog prava

(I.), Model transnacionalnog postupovnog jedinstva (II.) i Model Ureda europskog javnog

tužitelja (III.).

U Poglavlju VI sintetizirani su rezultati istraživanja. Središnji dio Zaključka je dio u kojem se

sažimaju rezultati usporedbe između modela uzajamne pravne pomoći i modela uzajamnog

priznanja za prekogranično prikupljanje dokaza u kaznenom pravu Europske unije. U drugom

dijelu Zaključka daje se završna evaluacija primijenjenih i predloženih modela

prekograničnog prikupljanja dokaza u kaznenom pravu Europske unije, te se daju naznake

budućeg razvoja ovoga pravnog područja, kao i budućnosti kaznenog prava Europske unije u

cjelini.

5. Rezultati istraživanja

Polazna hipoteza rada bila je ocjena da kazneno pravo Europske unije treba takav model za

prekogranično prikupljanje dokaza koji će uzeti u obzir interese svih čimbenika u tom

postupku: interese država članica, interese pojedinca i interese Europske unije. Uzimajući u

obzir i balansirajući sve uključene interese, takav bi model istodobno omogućio ostvarivanje

triju jednako važnih ciljeva: učinkovitost kaznenog progona transnacionalnog kriminala,

zaštitu temeljnih ljudskih prava pojedinca i očuvanje integriteta nacionalnih kaznenopravnih

sustava država članica. Modeli koji se trenutno primjenjuju u kaznenom pravu Europske unije

– model uzajamne pravne pomoći i model uzajamnog priznanja – bili su analizirani kako bi se

ocijenila mjera u kojoj omogućuju ostvarenje tih ciljeva.

Analiza modela uzajamne pravne pomoći pokazala je da se radi o modelu koji je snažno

usmjeren na očuvanje nacionalnog suvereniteta i drugih važnih interesa, uključujući i

koherentnost nacionalnih kaznenopravnih sustava, država koje surađuju. Ovaj model, koji se

temelji na načelima tradicionalne međunarodne pravne pomoći u kaznenim stvarima,

karakterizira važnost političkih razmatranja, odsustvo strogih obveza u međunarodnoj

suradnji, i postojanje fleksibilnih pravila koja državama koje surađuju omogućuju da potrebe

suradnje prilagode zahtjevima koji proizlaze iz njihovih nacionalnih kaznenopravnih

poredaka. Sva ta obilježja, čije je postojanje pokazala analiza njegovih teorijskih temelja i

normativna analiza pravnih pravila sadržanih u instrumentima koji reguliraju suradnju

utemeljenu na načelima uzajamne pravne pomoći, iako dobrodošla iz pozicije očuvanje

integriteta i koherentnosti nacionalnih kaznenopravnih sustava, ne stvaraju odgovarajući

pravni okvir za učinkoviti progon transnacionalnog kriminaliteta. Model uzajamne pravne

pomoći manjkav je ne samo u odnosu na učinkovitost progona transnacionalnog kriminaliteta,

već i u odnosu na zaštite temeljnih ljudskih prava pojedinca. Iako se u tom modelu, kroz

njegov povijesni razvoj, dogodila promjena u poimanju pojedinca, koji se iz objekta pretvorio

u subjekt uzajamne pravne pomoći, pojedincu u tom modelu nije dan položaj koji bi mu

omogućio da na odgovarajući način zaštiti svoje interese u postupku prekograničnog

prikupljanja dokaza. Ovaj zaključak vrijedi jednako u odnosu na okrivljenika i njegovu

obranu u kaznenom postupku države moliteljice, kao i za pojedinca prema kojem se dokazna

radnja poduzima na području zamoljene države.

Primarno motiviran željom da se povisi učinkovitost kaznenog progona transnacionalnog

kriminaliteta, u Europskoj je uniji razvijen drugi model pravosudne suradnje u kaznenim

stvarima – model uzajamnog priznanja. Iako je bilo očigledno da se prepreke ka

učinkovitijem progonu transnacionalnog kriminala u kooperacijskom modelu najuspješnije

mogu otkloniti harmonizacijom nacionalnih kaznenopravnih sustava, politička je realnost

Europsku unije odvela na drugi kolosijek – prema razvoju modela koji neće eliminirati razlike

između nacionalnih kaznenopravnih sustava, već će ih prihvatiti i priznavati. Uvođenjem

modela uzajamnog priznanja promijenila se paradigma pravosudne suradnje u kaznenim

stvarima – država moliteljica, sada država izdavanja, više te šalje zamolbu drugoj državi,

zamoljenoj državi, sada državi izvršenja, tražeći od nje da poduzme određenu radnju na svom

teritoriju za potreba kaznenog postupka koji se vodi u državi moliteljici/državi izdavanja, već

nalaže poduzimanje određene radnje na teritoriju zamoljene države/države izvršenja. Osim što

se promijenila paradigma pravosudne suradnje u kaznenim stvarima, model uzajamnog

priznanja uveo je i niz drugih značajnih novina, koje se primarno očituju kroz povećanu

strogoću suradnje i njezinu punu judicijalizaciju.

Tako postavljen, model uzajamne pravne pomoći pruža bolje temelje za učinkoviti progon

transnacionalnog kriminala, jer fokus premješta sa zamoljene države/države izvršenja, na

državu moliteljicu/državu izdavanja, u kojoj se vodi kazneni postupak i koja u

kooperacijskom modelu preuzima odgovornost za progon transnacionalnog kriminala. Koliko

model uzajamnog priznanja može biti učinkovit, pokazalo je iskustvo njegove primjene u

području izručenja, u kojem je tradicionalni postupak izručenja zamijenjen postupkom predaje

između nadležnih pravosudnih tijela država članica. Međutim, u području dokaza, model

uzajamnog priznanja do sada nije ostvario svoj puni potencijal u odnosu na učinkovitost

kaznenog progona, jer se njegovo funkcioniranje u ovom području pokazalo izuzetno

problematičnim u okruženju neharmoniziranih nacionalnih kaznenopravnih poredaka. Zbog

toga je u području suradnje u prekograničnom pribavljanju dokaza koja se temelji na modelu

uzajamnog priznanja uveden niz ograničenja i devijacija od logike uzajamnog priznanja, koje

umanjuju potencijale tog modela da posluži kao temelj za učinkoviti transnacionalni kazneni

progon.

Premještajući fokus sa zamoljene države/države izvršenja na državu moliteljicu/državu

izdavanja, model uzajamnog priznanja inherentno prijeti narušavanjem integriteta nacionalnih

kaznenopravnih predaka, povećavajući mogućnosti za izvršenje odluka stranih

kaznenopravnih tijela na domaćem teritoriju. Briga za očuvanje koherentnosti nacionalnih

kaznenopravnih sustava dobila je odgovarajuće mjesto i u modelu uzajamnog priznanja u

području prekograničnog prikupljanja dokaza, primarno kroz uvođenje velikog broja razloga

za odbijanje izvršenja naloga i kroz mogućnost da zamoljena država/država izvršenja nalog za

pribavljanje dokaza prilagodi zahtjevima svojeg (kazneno)pravnog sustava, kroz poduzimanje

dokazne radnje koja je različita od one koju je naložila država moliteljica/država izdavanja

naloga.

Uvođenje načela uzajamnog priznanja u područje prekograničnog prikupljanja dokaza dovelo

je do porasta svijesti o važnosti položaja pojedinca u postupcima pravosudne suradnje u

kaznenim stvarima. Kao posljedica takvoga razvoja, u pravne instrumente unesene su odredbe

o posebnim razlozima za odbijanje suradnje koji se temelje na zaštiti prava pojedinca,

posebne odredbe o pravnim lijekovima te je pojedincu priznata mogućnost da inicira

prekogranično prikupljanje dokaza. Ipak, pojedincu i dalje nisu priznata nikakva posebna

prava u postupku prekograničnog prikupljanja dokaza.

Na temelju iznesenog, zaključeno je da model uzajamnog priznanja, usprkos nedostacima,

pruža bolju pravnu osnovu za učinkoviti progon transnacionalnog kriminaliteta. Puni

potencijal „učinkovitosti“ ovog modela u području dokaza nije ostvaren zbog različitosti

nacionalnih kaznenopravnih sustava, koje osobito dolaze do izražaja u suradnji u području

dokazivanja. Interes učinkovitosti umanjen je kako bi se učinci načela uzajamnog priznanja,

kroz uvođenje ublaženog oblika uzajamnog priznanja, bili pomireni sa interesom očuvanja

integriteta nacionalnih kaznenopravnih poredaka. Uvođenje načela uzajamnog priznanja

dovelo je do boljeg razumijevanja položaja pojedinca u postupcima prekograničnog

prikupljanja dokaza, iako položaj pojedinca niti u ovom modelu još uvijek nije odgovarajući.

Dakle, model uzajamnog priznanja predstavlja napredak u području prekograničnog

prikupljanja dokaza zato što stvara pravni režim koji omogućuje povećanu učinkovitost

transnacionalnog kaznenog progona, praćenu boljim razumijevanjem položaja pojedinca u

postupcima pravosudne suradnje, i pri tom ne gubi iz vida niti potrebu da se očuva

koherentnost nacionalnih kaznenopravnih poredaka država članica. U usporedbi s modelom

uzajamne pravne pomoći, ovaj model bolje uravnotežuje interese svih čimbenika u postupku

prekograničnog prikupljanja dokaza u kaznenom pravu Europske unije.

Kako bi načelo uzajamnog priznanja ostvarilo svoj puni potencijal, mora biti praćeno

sveobuhvatnom harmonizacijom nacionalnih kaznenopravnih poredaka. Kao što su rezultati

analize slučaja pokazali, suradnja koja se temelji na načelu uzajamnog priznanja još je dublje

uronjena u nacionalne kaznenopravne poretke od suradnje koja se temelji na načelu uzajamne

pravne pomoći. Harmonizacija treba obuhvatiti i materijalno i procesno kazneno pravo država

članica. U području kaznenog procesnog prava, ona se mora odnositi ne samo na temeljna

prava pojedinca u kaznenom postupku, već i na prikupljanje i uporabu dokaza u kaznenom

postupku. Jedino u okruženju harmoniziranih nacionalnih kaznenopravnih poredaka model

uzajamnog priznanja može ostvariti svoj puni potencijal.

Dužnu pažnju treba dati i drugim – predloženim – modelima za prekogranično prikupljanja

dokaza u kaznenom pravu Europske unije, osobitu prijedlogu za uspostavu Ureda europskog

javnog tužitelja. Za razliku od postojećih modela, gdje je odgovornost za izgradnju

transnacionalno učinkovitog kaznenog prava u Europskoj uniji stavljena primarno u ruke

nacionalnih kaznenopravnih poredaka, ovaj model pretpostavlja uspostavu istinskog

europskog tijela kaznenog progona – Europskog javnog tužitelja. Ideja da određena pravna

dobra, čija je zaštita primarno interes Europske unije, mora biti stavljena u ruke institucije

Europske unije logična je i treba je i dalje izgrađivati.

Na temelju svega rečenog, odgovori na postavljena istraživačka pitanja su sljedeći:

1. Model uzajamne pravne pomoći ne može odgovoriti izazovima transnacionalnog kriminala

i odgovore na izazove koje transnacionalni kriminal postavlja u području prekograničnog

prikupljanja dokaza treba tražiti u okvirima nekog drugog modela;

2. Model uzajamnog priznanja postavlja, teorijski i normativno, bolji okvir za prekogranično

prikupljanje dokaza u kaznenom pravu Europske unije, jer bolje uravnotežuje interese

učinkovitog transnacionalnog kaznenog progona, očuvanja koherentnosti nacionalnih

kaznenopravnih poredaka i zaštite temeljnih prava pojedinaca;

3. Harmonizacija nacionalnih kaznenopravnih poredaka značajno bi olakšala suradnju

nacionalnih kaznenopravnih tijela koja se temelji na načelu uzajamnog priznanja. Djelovanje

modela uzajamnog priznanja u okruženju harmoniziranih materijalnih i kaznenih procesnih

prava povećalo bi njegovu učinkovitost, moglo bi poslužiti kao poticaj za jačanje prava

pojedinaca u okvirima transnacionalnog kaznenog progona, a i riješilo bi izazove koje načelo

uzajamnog priznanja postavlja pred integritet nacionalnih kaznenopravnih poredaka;

4. Razvijanje elemenata supranacionalnog kaznenopravnog poretka potrebno je u onim

područjima u kojima je interes zaštite pojedinih pravnih dobara primarno interes Europske

unije i u kojima se stoga ne može očekivati adekvatan odgovor kroz suradnju nacionalnih

kaznenopravnih poredaka;

5. Ne postoje zapreke da se različiti modeli, uz jasno razgraničenje njihovih područja

primjene, istodobno primjenjuju u području prekograničnog prikupljanja dokaza u kaznenom

pravu Europske unije.

ZUSAMMENFASSUNG

Die Zusammenfassung besteht aus fünf Teilen, in denen folgendes dargestellt wird: 1.

Forschungsgegenstand, 2. Forschungsziel, 3. Forschungsmethodik, 4. Forschungsablauf, und

5. Forschungsergebnisse (Schlussfolgerungen).

1. Forschungsgegenstand

Die Beweisfrage im Strafverfahren ist eine der kontroversesten Fragen des Strafrechts der

Europäischen Union in den letzten zwanzig Jahren und länger. In diesem Zeitraum wurde eine

Reihe von Rechtsinstrumenten eingeführt, die anstrebten den Bereich der justiziellen

Zusammenarbeit in Strafsachen bei der Beweiserhebung rechtlich entsprechend zu regeln.

Das Beweisrecht war nicht nur ein erstrangiger Gegenstand der gesetzgeberischen

Aktivitäten, sonder vereinnahmte auch die Wissenschaft und fachliche Öffentlichkeit intensiv.

Die Wissenschaftsgemeinde ist aktiv in die Debatte über die zukünftige Zusammenarbeit im

Bereich der Beweisführung im Strafrecht der Europäischen Union eingestiegen. Als Folge

dieser gesetzgeberischen und wissenschaftlichen Aktivitäten wurde eine Reihe möglicher

Ansätze zur Lösung dieser verwickelten Frage vorgeschlagen. Trotz all dieser Bestrebungen

wurde die Frage der Zusammenarbeit bei der Beweiserhebung und der Verwertung so

erhobener Beweise in Strafverfahren der Mitgliedsstaaten jedoch noch immer nicht auf

entsprechende Art gelöst. Dieser Zustand erfordert die Durchführung einer systematischen

Analyse möglicher Ansätze für die Lösung dieser Frage sowie ihren Vergleich und ihre

Evaluierung.

Wenn über grenzüberschreitende Beweiserhebung für die Erfordernisse von Strafverfahren im

Rahmen des Strafrechts der Europäischen Union gesprochen wird, dann kann dieses Thema

aus einer weiteren Perspektive betrachtet werden – durch das Bestreben, das Strafrecht der

Europäischen Union in transnational wirksames Strafrecht zu transformieren. Die

Notwendigkeit der Schaffung eines transnational wirksamen Strafrechts ist eine Folge der

Herausforderungen, denen das gegenwärtige Strafrecht begegnet, dessen Wirkung territorial

beschränkt ist, im Bestreben, kriminelle Aktivitäten wirksam zu bekämpfen, die immer mehr

transnationale (regionale und globale) Formen annehmen. Transnational wirksames Strafrecht

kann auf zwei Arten geschaffen werden, durch Anwendung zweier Modelle – das Modell der

Kooperation nationaler Strafrechtsordnungen oder das Modell des Aufbaus einer

supranationalen Rechtsordnung. Zwischen diesen beiden Idealmodellen besteht auch eine

Reihe von Übergangsformen, die Elemente des einen und des anderen Modells in

unterschiedlichem Maße kombinieren. Im Kooperationsmodell wird das transnationale

Strafrecht durch den Dialog nationaler Strafrechtsordnungen aufgebaut, die das gemeinsame

Interesse an der Verfolgung von transnationalen kriminellen Aktivitäten teilen. Auf der

anderen Seite wird das supranationale Modell charakterisiert durch den Aufbau einer neuen

Rechtsordnung, deren Träger Organisationen darstellen, die größer als Nationalstaaten sind.

Beide Modelle oder ihre Elemente können auch für den Ausbau des Strafrechts der

Europäischen Union angewandt werden und als Grundlage für die Lösung der Frage der

Beweisführung im Strafrecht der Europäischen Union dienen.

Die Zusammenarbeit bei der grenzüberschreitenden Beweiserhebung im Strafrecht der

Europäischen Union ist derzeit durch Regelungen geregelt, die auf zwei Modellen der

justiziellen Zusammenarbeit in Strafsachen gründen. Die erste Gruppe von Regelungen

gründet auf dem Modell der gegenseitigen Rechtshilfe und die zweite Gruppe von

Regelungen auf dem Modell der gegenseitigen Anerkennung. Das Modell der gegenseitigen

Rechtshilfe ist das traditionelle Modell der justiziellen Zusammenarbeit in Strafsachen. Es

handelt sich um ein Modell, dass im europäischen Kontext im Rahmen des Europarates

entwickelt wurde, von wo es in das Strafrecht der Europäischen Union übernommen und an

die besonderen Bedürfnisse einer intensiveren justiziellen Zusammenarbeit angepasst wurde.

Außer dem Bestreben, das Modell der gegenseitigen Rechtshilfe den eigenen Bedürfnissen

anzupassen, hat das Strafrecht der Europäischen Union gleichzeitig auch eine andere

Richtung genommen durch Entwicklung eines eigenen Modells der justiziellen

Zusammenarbeit in Strafsachen – des Modells der gegenseitigen Anerkennung. Dieses Modell

basiert auf einer Idee, die im Rahmen des europäischen Integrationsprozesses im

Binnenmarktrecht entwickelt wurde und voraussetzt, dass Unterschiede zwischen nationalen

Rechtsordnungen kein Hindernis beim Erreichen gemeinsamer europäischer Ziele darstellen

dürfen. Im Bereich der justiziellen Zusammenarbeit in Strafsachen heißt das, dass eine von

einer zuständigen Justizbehörde eines Mitgliedsstaates getroffene Entscheidung grundsätzlich

von den Justizbehörden jedes anderen Mitgliedsstaates anerkannt und vollzogen werden muss,

unabhängig von den Unterschieden, die zwischen ihren nationalen Strafrechtssystemen

bestehen. Diese zwei Modelle sind der primäre Forschungsgegenstand dieser Arbeit.

Obwohl die Untersuchung primär auf das Modell der gegenseitigen Rechtshilfe und auf das

Modell der gegenseitigen Anerkennung ausgerichtet ist, werden andere mögliche und

vorgeschlagene Modelle grenzüberschreitender Beweiserhebung ebenfalls dargestellt und

analysiert. Einige der vorgeschlagenen Modelle beschränken sich nicht auf die Förderung der

Zusammenarbeit zwischen nationalen Strafrechtssystemen (Kooperationsmodelle), sondern

sie setzten den Ausbau der Elemente einer supranationalen Rechtsordnung voraus

(supranationale Modelle).

2. Forschungsziele

Die Entwicklung des Strafrechts der Europäischen Union wird allgemein durch Intensivierung

der Zusammenarbeit nationaler Strafrechtsordnungen charakterisiert, aufbauend auf dem

Modell der gegenseitigen Anerkennung. Der Grundsatz der gegenseitigen Anerkennung

wurde als Basis der justiziellen Zusammenarbeit in Strafsachen anerkannt und diente als Basis

der europäischen Integration im strafrechtlichen Bereich. Das Bestreben, dass das Modell der

gegenseitigen Anerkennung als Grundlage für die justiziellen Zusammenarbeit im Bereich der

grenzüberschreitenden Beweiserhebung dienen sollte, zeigte sich jedoch außerordentlich

problematisch. Alle Anstrengungen die Zusammenarbeit im Bereich der Beweise auf

Regelungen zu begründen, die aus dem Grundsatz der gegenseitigen Anerkennung

hervorgehen, wurden mit entgegengesetzten Tendenzen konfrontiert – nämlich, dass die

Zusammenarbeit im Bereich der Beweise auf der Basis aufgebaut bleibt, die hervorgeht aus

dem traditionellen Modell der justiziellen Zusammenarbeit in Strafsachen, d.h. dem Modell

der Rechtshilfe.

Das allgemeine Ziel dieser Untersuchung ist die Analyse, der Vergleich und die Evaluierung

der Modelle der grenzüberschreitenden Zusammenarbeit bei der Beweiserhebung. Ihre

Ausgangshypothese, die auch als Grundlage für die Entwicklung des analytischen Werkzeugs

dient, dass die justiziellen Zusammenarbeit bei grenzüberschreitender Zusammenarbeit bei

der Beweiserhebung für die Erfordernisse von Strafverfahren im Strafrecht der Europäischen

Union auf dem Modell gründen muss, das die Interessen aller Teilnehmer dieses Verfahrens

berücksichtigt und ins Gleichgewicht bringt: die an der Zusammenarbeit beteiligten

Mitgliedsstaaten, Individuen und die Europäische Union. Das allgemeine Ziel der

Untersuchung wird durch die Suche nach der Antwort auf folgende Forschungsfragen

umgesetzt:

1. Kann das Modell der gegenseitigen Rechtshilfe, das auf den Ideen der staatlichen

Souveränität und des nationalen Strafrechts gründet, auf die Herausforderungen

transnationaler Kriminalität im Bereich der grenzüberschreitenden Beweiserhebung

antworten;

2. Ist die Einführung des Modells der gegenseitigen Anerkennung in den Bereich der

grenzüberschreitenden Beweiserhebung eine adäquate Antwort auf die sich stellenden

Herausforderungen;

3. Welche Fortschritte können in diesem Bereich durch die Harmonisierung des

Straf(Prozess)rechts der Mitgliedsstaaten erreicht werden;

4. Ist es notwendig, und wenn ja, in welchem Maße, Elemente einer supranationalen

Rechtsordnung zu entwickeln;

5. Muss ein „reines“ Modell existieren oder können unterschiedliche Modelle der

grenzüberschreitenden Beweiserhebung gleichzeitig koexistieren und kombiniert werden?

3. Forschungsmethodik

Um das Ziel der Untersuchung zu verwirklichen und um eine Antwort auf die gestellten

Forschungsfragen geben zu können, verwendet die Untersuchung folgende

Forschungsmethoden, die für die Rechtswissenschaften charakteristisch sind: die theoretische

Methode, die normative Methode, die komparative Methode und die Methode der Fallanalyse.

Die theoretische Methode wird in unterschiedlichen Teilen dieser Arbeit angewandt. In den

Kapiteln II und III, in denen die Modelle der gegenseitigen Rechtshilfe und der gegenseitigen

Anerkennung dargestellt und analysiert werden, wird sie angewandt, um den historischen

Hintergrund und die theoretische Grundlagen des Modells darzustellen. Durch Anwendung

der theoretischen Methode werden die Modelle in einem breiteren Kontext des internationalen

(Straf-) Rechts und des Rechts der Europäischen Union betrachtet, um eine bessere

Verständlichkeit ihrer wesentlichen Grundsätze zu ermöglichen. Auf dieser Methode gründet

die in Kapitel V angestellte Analyse, die sich mit den vorgeschlagenen alternativen Modellen

der grenzüberschreitenden Beweiserhebung im Strafrecht der Europäischen Union

beschäftigt.

In der Arbeit wird auch die normative Methode durch Analyse der juristischen Regeln

angewandt, auf denen die grenzüberschreitende Beweiserhebung im Modell der gegenseitigen

Rechtshilfe und im Modell der gegenseitigen Anerkennung gründet. Um eine Evaluierung der

Modelle zu ermöglichen, werden die in den juristischen Instrumenten enthaltenen Regelungen

bei der Durchführung der normativen Analyse durch drei unterschiedliche Perspektiven

dargelegt und analysiert: die Perspektive des Mitgliedsstaates in dem das Strafverfahren

durchgeführt wird, die Perspektive des Mitgliedsstaates auf dessen Territorium sich die

Beweise befinden und die Perspektive des Individuums und seiner Verteidigung im

Strafverfahren.

Die Methode der Fallanalyse wird angewandt, um das Funktionieren der Modelle in der

praktischen Situation der grenzüberschreitenden Beweiserhebung zu analysieren und zu

evaluieren. Analysiert wird die Durchführung der Hausdurchsuchung im transnationalen

Kontext am Beispiel der Zusammenarbeit zwischen kroatischen und deutschen zuständigen

Justizbehörden.

Die komparative Methode wird angewandt, um die grundlegenden Unterschiede zwischen

dem Modell der gegenseitigen Rechtshilfe und dem Modell der gegenseitigen Anerkennung

darzustellen. Als Grundlage für den Vergleich werden die Resultate der theoretischen, der

normativen und der Methode der Fallanalyse verwendet.

4. Forschungsablauf

Die Untersuchung ist in sechs Kapitel gegliedert. Kapitel I umfasst die Einleitung, in welcher

der Forschungsgegenstand (I.), die Forschungsziele (II.), die Forschungsmethodik (III.) und

der Forschungsablauf (IV.) begründet werden.

In den Kapiteln II und III werden die Modelle der gegenseitigen Rechtshilfe und der

gegenseitigen Anerkennung dargestellt, analysiert und evaluiert. Jedes dieser zwei Kapitel ist

in zwei Teile geteilt. In Teil I jedes Kapitels werden die theoretischen Grundlagen des

jeweiligen Modells analysiert. In Teil II jedes Kapitels wird eine normative Analyse der

juristischen Regelungen durchgeführt, welche die grenzüberschreitende Beweiserhebung im

Strafrecht der Europäischen Union regeln und die entweder auf dem Modell der gegenseitigen

Rechtshilfe oder dem Modell der gegenseitigen Anerkennung gründen. Die normative

Analyse ist in drei Einheiten geteilt: die Stellung des ersuchenden Staates/Anordnungsstaates,

die Stellung des ersuchten Staates/Vollstreckungsstaates, und die Stellung des Individuums.

Das Schema der normativen Analyse, die in Kapitel III durchgeführt wird, entspricht nicht

gänzlich dem Schema, das in Kapitel II angewandt wird. Während nämlich bei der

normativen Analyse in Kapitel II alle juristischen Instrumente, die dem Modell der

gegenseitigen Rechtshilfe angehören, gemeinsam analysiert und gemeinsame Resultate

vorgebracht werden, so werden bei der normativen Analyse, die in Kapitel III durchgeführt

wird, die wichtigsten juristischen Instrumente, die den Grundsatz der gegenseitigen

Anerkennung im Bereich der grenzüberschreitenden Beweiserhebung eingeführt haben – der

Rahmenbeschluss über die Europäische Beweisanordnung und die Richtlinie über die

Europäische Ermittlungsanordnung – getrennt analysiert. Obwohl ein solcher Ansatz kritisiert

werden könnte, war er notwendig, um eine klare und umfassende Darstellung und Analyse

des letzten und wichtigsten juristischen Instruments im Bereich der grenzüberschreitenden

Beweiserhebung im Strafrecht der Europäischen Union durchzuführen, der Richtlinie über die

Europäische Ermittlungsanordnung. Die Richtlinie wurde im April 2014 erlassen und war

bisher noch kein Gegenstand einer umfassenden wissenschaftlichen Analyse. Demnach

wurden die Interessen einer methodischen Reinheit zu Gunsten der Interessen einer klaren

und umfassenden Analyse des rezentesten und wichtigsten juristischen Instruments in diesem

außerordentlich dynamischen und normativ instabilen Bereich des Strafrechts der

Europäischen Union geopfert. Des Weiteren würde eine getrennte Darstellung und normative

Analyse der Instrumente der gegenseitigen Rechtshilfe den Text der Arbeit unnötig belasten.

Diese Instrumente, wie die Untersuchung auch zeigte, folgen dem gleichen grundlegenden

Ansatz der justiziellen Zusammenarbeit in Strafsachen und daher stellen sie ein stabiles und

vorhersehbares methodisches Regime dar. Auf der anderen Seite zeigen juristische

Instrumente, die auf dem Grundsatz der gegenseitigen Anerkennung gründen, eine Reihe von

Unterschieden bei der Art der Anwendung von grundlegenden Thesen des Grundsatzes der

gegenseitigen Anerkennung und eine klare Darstellung dieser Unterschiede erfordert eine

getrennte Analyse der gegenständlichen juristischen Instrumente.

In Kapitel IV wird eine Fallanalyse durchgeführt. Ziel der Analyse ist die Darstellung des

praktischen Funktionierens des Modells der gegenseitigen Rechtshilfe und des Modells der

gegenseitigen Anerkennung am Beispiel der Hausdurchsuchung. Die Analyse wird durch eine

Darstellung der Zusammenarbeit von kroatischen und deutschen zuständigen Justizbehörden

durchgeführt. Dieses Kapitel fängt mit der Analyse der Rechtsregime zur Vornahme von

Hausdurchsuchungen im kroatischen und deutschen Rechtssystem an (I.). Nach der Analyse

des Rechstregimes folgt eine Analyse der Durchführung einer Hausdurchsuchung im

transnationalen Kontext im Modell der gegenseitigen Rechtshilfe und im Modell der

gegenseitigen Anerkennung am Beispiel der Zusammenarbeit zwischen kroatischen und

deutschen zuständigen Justizbehörden (II.).

Das fünfte Kapitel ist der Darstellung und theoretischen Analyse anderer möglicher und

vorgeschlagener Modelle für die grenzüberschreitende Beweiserhebung im Strafrecht der

Europäischen Union gewidmet. Der Gegenstand dieses Teils der Arbeit sind drei Modelle: das

Modell des voll supranationalisierten Kooperationsrechts (I.), das Modell der transnationalen

schrittweisen Einheit (II.) und das Modell des Büros eines europäischen Staatsanwalts (III.).

In Kapitel VI wurden die Forschungsergebnisse synthetisiert. Der zentrale Teil der

Schlussfolgerung ist ein Teil, in dem die Resultate des Vergleichs zwischen dem Modell der

gegenseitigen Rechtshilfe und dem Modell der gegenseitigen Anerkennung bei der

grenzüberschreitenden Beweiserhebung im Strafrecht der Europäischen Union

zusammengefasst werden. Im zweiten Teil der Schlussfolgerung wird eine abschließende

Evaluierung der angewandten und vorgeschlagenen Modelle der grenzüberschreitenden

Beweiserhebung im Strafrecht der Europäischen Union durchgeführt sowie Hinweise auf eine

zukünftige Entwicklung dieses Rechtsbereichs dargestellt als auch der Zukunft des Strafrechts

der Europäischen Union im Ganzen.

5. Forschungsergebnisse

Die Ausgangshypothese der Arbeit war die Einschätzung, dass das Strafrecht der

Europäischen Union solch ein Modell für die grenzüberschreitende Beweiserhebung benötigt,

das die Interessen aller Faktoren in diesem Verfahren berücksichtigt: das Interesse der

Mitgliedsstaaten, das Interesse der Individuen und das Interesse der Europäischen Union.

Unter Berücksichtigung aller eingeschlossenen Interessen und zwischen ihnen balancierend,

würde ein solches Modell gleichzeitig die Verwirklichung von drei gleich wichtigen Zielen

ermöglichen: die Wirksamkeit der Strafverfolgung transnationaler Kriminalität, der Schutz

grundlegender Menschenrechte des Individuums und der Erhalt der Integrität nationaler

Strafrechtssysteme der Mitgliedsstaaten. Die Modelle, die derzeit im Strafrecht der

Europäischen Union angewandt werden – das Model der gegenseitigen Rechtshilfe und das

Modell der gegenseitigen Anerkennung – wurden analysiert, um das Maß zu analysieren, in

dem sie die Verwirklichung dieser Ziele ermöglichen.

Die Analyse des Modells der gegenseitigen Rechtshilfe hat gezeigt, dass es sich um ein

Modell handelt, das stark auf den Erhalt der nationalen Souveränität und anderer wichtiger

Interessen ausgerichtet ist, einschließlich der Kohärenz nationaler Strafrechtssysteme der

zusammenarbeitenden Staaten. Dieses Modell, das auf den Grundsätzen der traditionellen

internationalen Rechtshilfe bei Strafsachen gründet, wird charakterisiert durch die Wichtigkeit

des politischen Diskurses, die Abwesenheit strenger Pflichten bei der internationalen

Zusammenarbeit und das Bestehen flexibler Regeln, die den zusammenarbeitenden Staaten

ermöglichen die Erfordernisse der Zusammenarbeit an die Anforderungen anzupassen, die aus

ihren nationalen Strafrechtsordnungen hervorgehen. All diese Merkmale, deren Bestehen die

Analyse der theoretischen Grundlagen zeigte sowie die normative Analyse der in den

Instrumenten enthaltenen rechtlichen Regeln, welche die Zusammenarbeit auf Grundlage des

Grundsatzes der gegenseitigen Rechtshilfe regeln, obwohl willkommen aus Sicht des Erhalts

der Integrität und Kohärenz nationaler Strafrechtssysteme, bilden keinen entsprechenden

Rechtsrahmen für eine wirksame Verfolgung transnationaler Kriminalität. Das Modell der

gegenseitigen Rechtshilfe ist nicht nur im Bezug auf die Wirksamkeit der Verfolgung

transnationaler Kriminalität mangelhaft, sondern auch im Bezug auf den Schutz der

grundlegenden Menschenrechte des Individuums. Obwohl sich das Verständnis der

Individuen in dem Modell durch seine historische Entwicklung vom Objekt hin zum Subjekt

der gegenseitigen Rechtshilfe geändert hat, wurde dem Individuum in diesem Modell nicht

die Stellung eingeräumt, die ihm den Schutz seiner Interessen im Verfahren der

grenzüberschreitenden Beweiserhebung auf entsprechende Art ermöglichen würde. Diese

Schlussfolgerung gilt sowohl im Bezug auf den Beschuldigten und seine Verteidigung im

Strafverfahren des ersuchenden Staates als auch im Bezug auf das Individuum, gegen das sich

die Beweishandlung auf dem Gebiet des ersuchten Staates richtet.

Primär motiviert durch den Wunsch die Wirksamkeit der Strafverfolgung transnationaler

Kriminalität zu erhöhen, wurde in der Europäischen Union ein anderes Modell der justiziellen

Zusammenarbeit in Strafsachen entwickelt – das Modell der gegenseitigen Anerkennung.

Obwohl offensichtlich war, dass sich die Hindernisse auf dem Wege zu einer wirksameren

Verfolgung transnationaler Kriminalität im Kooperationsmodell am erfolgreichsten durch die

Harmonisierung nationaler Strafrechtssysteme beseitigen lassen, führte die politische Realität

die Europäische Union in eine andere Richtung – hin zur Entwicklung eines Modells, dass die

Unterschiede zwischen den nationalen Strafrechtssystemen nicht eliminiert, sondern sie

akzeptiert und anerkennt. Durch Einführung des Modells der gegenseitigen Anerkennung hat

sich das Paradigma der justiziellen Zusammenarbeit in Strafsachen geändert – der ersuchende

Staat, jetzt der Anordnungsstaat, schickt keinen Antrag mehr an einen anderen Staat, den

ersuchten Staat, jetzt den Vollstreckungsstaat, mit dem Ersuchen, dass er eine bestimmte

Handlung auf seinem Territorium für die Erfordernisse des in dem ersuchenden Staat/

Anordnungsstaat geführten Strafverfahrens vornehmen möge, sondern er ordnet die

Vornahme einer bestimmten Handlung auf dem Territorium des ersuchten Staates/

Vollstreckungsstaates an. Außer dass sich das Paradigma der justiziellen Zusammenarbeit in

Strafsachen geändert hat, hat das Modell der gegenseitigen Anerkennung eine andere

wesentliche Neuheiten eingeführt, die sich primär durch eine größere Strenge der

Zusammenarbeit und ihre volle Judizialisierung äußert.

Das Modell der gegenseitigen Rechtshilfe bietet so aufgestellt bessere Grundlagen für die

wirksame Verfolgung transnationaler Kriminalität, da der Fokus sich von dem ersuchten Staat

/Vollstreckungsstaat hin zu dem ersuchenden Staat/ Anordnungsstaat verlagert, in dem das

Strafverfahren geführt wird und der in dem Kooperationsmodell die Verantwortung für die

Verfolgung transnationaler Kriminalität übernimmt. Wie effizient das Modell der

gegenseitigen Anerkennung sein kann, zeigt die Erfahrung mit seiner Anwendung im Bereich

der Auslieferung, in der das traditionelle Auslieferungsverfahren durch das Verfahren der

Übergabe zwischen den zuständigen Justizbehörden der Mitgliedsstaaten ersetzt wurde. Im

Beweisbereich jedoch hat das Modell der gegenseitigen Anerkennung bis jetzt noch nicht sein

volles Potenzial im Bezug auf die Wirksamkeit der Strafverfolgung entfaltet, da sich sein

Funktionieren in diesem Bereich im Umfeld nicht harmonisierter nationaler

Strafrechtsordnungen als außerordentlich problematisch gezeigt hat. Aufgrund dessen wurden

im Bereich der Zusammenarbeit bei der grenzüberschreitenden Beweiserhebung, die auf dem

Modell der gegenseitigen Anerkennung gründet, eine Reihe von Beschränkungen und

Abweichungen von der Logik der gegenseitigen Anerkennung eingeführt, die das Potential

dieses Modells als Grundlage für eine wirksame transnationale Strafverfolgung verringern.

Durch Verlegung des Fokus von dem ersuchten Staat/ Vollstreckungsstaat auf den

ersuchenden Staat/ Anordnungsstaat, droht das Modell der gegenseitigen Anerkennung

inhärent mit der Beeinträchtigung der Integrität nationaler Strafrechtsordnungen, durch

Erweiterung der Möglichkeiten für den Vollzug von Entscheidung ausländischer

strafrechtlicher Behörden auf einheimischen Territorium. Die Sorge um den Erhalt der

Kohärenz nationaler Strafrechtssysteme hat auch im Modell der gegenseitigen Anerkennung

im Bereich der grenzüberschreitenden Beweiserhebung einen entsprechenden Platz gefunden,

primär durch Einführung einer großen Anzahl von Gründen für die Ablehnung der

Vollstreckung der Anordnung und durch die Möglichkeit, dass der ersuchte Staat/

Vollstreckungsstaat die Anordnung für die Beweiserhebung an die Anforderungen seines

(straf-)rechtlichen Systems anpasst durch die Vornahme von Beweishandlungen, die sich von

den unterscheidet, die vom ersuchenden Staat/ Anordnungsstaat angeordnet wurden.

Die Einführung des Grundsatzes der gegenseitigen Anerkennung im Bereich der

grenzüberschreitenden Beweiserhebung führte zu einem Anstieg des Bewusstseins über die

Wichtigkeit der Stellung des Individuums in Verfahren der justiziellen Zusammenarbeit in

Strafverfahren. Als Folge einer solchen Entwicklung wurden Bestimmungen über

Sondergründe für die Ablehnung der Zusammenarbeit in die Rechtsinstrumente eingefügt, die

auf dem Schutz der Rechte des Individuums gründen, sowie Sonderbestimmungen über

Rechtsmittel, und dem Individuum wird die Möglichkeit zuerkannt, die grenzüberschreitende

Beweiserhebung zu initiieren. Dennoch wurden dem Individuum auch weiterhin keine

Sonderrechte im Verfahren der grenzüberschreitenden Beweiserhebung anerkannt.

Auf Grundlage des Vorgebrachten wird geschlussfolgert, dass das Modell der gegenseitigen

Anerkennung trotz Mängel eine bessere rechtliche Grundlage für die wirksame Verfolgung

transnationaler Kriminalität bietet. Das volle Potential der „Wirksamkeit“ dieses Modells im

Bereich der Beweise wurde nicht entfaltet aufgrund unterschiedlicher nationaler

Strafrechtssystemen, die insbesondere bei der Zusammenarbeit im Bereich der Beweisführung

zum Ausdruck kommen. Das Interesse der Wirksamkeit wurde gemindert, um die Wirkung

des Grundsatzes der gegenseitigen Anerkennung durch Einführung einer gemilderten Form

der gegenseitigen Anerkennung mit dem Interesse des Erhalts der Integrität nationaler

Strafrechtsordnungen zu versöhnen. Die Einführung des Grundsatzes der gegenseitigen

Anerkennung hat zu einem besseren Verständnis der Stellung des Individuums im Verfahren

der grenzüberschreitenden Beweiserhebung geführt, gleichwohl die Stellung des Individuums

auch in diesem Modell noch immer nicht entsprechend ist. Demnach stellt das Modell der

gegenseitigen Anerkennung einen Fortschritt im Bereich der grenzüberschreitenden

Beweiserhebung dar, da es ein Rechtsregime schafft, dass eine größere Wirksamkeit der

transnationalen Strafverfolgung ermöglicht, begleitet von einem besseren Verständnis der

Stellung des Individuums in Verfahren justizieller Zusammenarbeit und dabei auch nicht das

Erfordernis aus dem Blick verliert, die Kohärenz nationaler Strafrechtsordnungen der

Mitgliedstaaten zu erhalten. Im Vergleich mit dem Modell der gegenseitigen Rechtshilfe

gleicht dieses Model die Interessen aller Faktoren im Verfahren der grenzüberschreitenden

Beweiserhebung im Strafrecht der Europäischen Union besser aus.

Damit der Grundsatz der gegenseitigen Anerkennung sein volles Potenzial entfalten kann,

muss es von einer umfassenden Harmonisierung der nationalen Strafrechtsordnungen

begleitet werden. Wie die Resultate der Fallanalyse gezeigt haben, dringt die auf dem

Grundsatz der gegenseitigen Anerkennung gründende Zusammenarbeit noch tiefer in

nationale Strafrechtsordnungen ein als die auf dem Grundsatz der gegenseitigen Rechtshilfe

gründende Zusammenarbeit. Die Harmonisierung muss auch das materielle Recht und das

Strafprozessrecht der Mitgliedsstaaten umfassen. Im Bereich des Strafprozessrechts muss sie

sich nicht nur auf die grundlegenden Rechte des Individuums im Strafverfahren beziehen,

sondern auch auf die Beweiserhebung und Beweisverwertung im Strafverfahren. Einzig im

Umfeld harmonisierter nationaler Strafrechtsordnungen kann das Modell der gegenseitigen

Anerkennung sein volles Potential entfalten.

Auch anderen – vorgeschlagenen – Modellen für die grenzüberschreitende Beweiserhebung

im Strafrecht der Europäischen Union muss Aufmerksamkeit geschenkt werden, insbesondere

dem Vorschlag für die Einrichtung des Büros eines europäischen Staatsanwalts. Im

Unterschied zu den bestehenden Modellen, bei denen die Verantwortung für den Ausbau

eines transnational wirksamen Strafrechts in der Europäischen Union primär in die Hände

nationaler Strafrechtsordnungen gelegt wird, setzt dieses Modell die Einrichtung einer

wahrhaftigen europäischen Strafverfolgungsbehörde voraus – den Europäischen Staatsanwalt.

Die Idee, dass bestimmte Rechtsgüter, deren Schutz das primäre Interesse der Europäischen

Union ist, in die Hände einer Institution der Europäischen Union gelegt werden müssen, ist

logisch und muss weiter ausgebaut werden.

Aufgrund des Gesagten, sind die Antworten auf die gestellten Forschungsfragen folgende:

1. Das Modell der gegenseitigen Rechtshilfe kann nicht auf die Herausforderungen

transnationaler Kriminalität antworten und die Antworten auf Herausforderungen durch die

transnationale Kriminalität im Bereich der grenzüberschreitenden Beweiserhebung müssen im

Rahmen eines anderen Modells gesucht werden;

2. Das Modell der gegenseitigen Anerkennung stellt sowohl theoretisch als auch normativ

einen besseren Rahmen für die grenzüberschreitenden Beweiserhebung im Strafrecht der

Europäischen Union dar, da es die Interessen der wirksamen transnationalen Strafverfolgung,

des Erhalts der Kohärenz nationaler Strafrechtsordnungen und des Schutzes der Grundrechte

des Individuums besser ins Gleichgewicht bringt;

3. Die Harmonisierung nationaler Strafrechtsordnungen würde die auf dem Grundsatz der

gegenseitigen Anerkennung gründende Zusammenarbeit nationaler Strafverfolgungsbehörden

wesentlich erleichtern. Das Wirken des Modells der gegenseitigen Anerkennung im Umfeld

harmonisierter materieller Rechte und Strafprozessrechte würde seine Wirksamkeit erhöhen

und könnte als Anreiz zur Stärkung der Rechte des Individuums im Rahmen transnationaler

Strafverfolgung dienen und es würde die Herausforderungen lösen, die vom Grundsatz der

gegenseitigen Anerkennung an die Integrität nationaler Strafrechtordnungen gestellt werden;

4. Die Entwicklung von Elementen einer supranationalen Strafrechtsordnung ist in den

Bereichen notwendig, in denen das Interesse des Schutzes einzelner Rechtsgüter ein primäres

Interesse der Europäischen Union ist und in denen daher keine adäquate Antwort durch

Zusammenarbeit nationaler Strafrechtsordnungen erwartet werden kann;

5. Es gibt keine Hindernisse dafür, dass unterschiedliche Modelle unter klarer Abgrenzung

ihrer Anwendungsbereiche gleichzeitig im Bereich der grenzüberschreitenden

Beweiserhebung im Strafrecht der Europäischen Union angewandt werden.

I

TABLE OF CONTENTS

Chapter I. INTRODUCTION ........................................................................................... 1

I. RESEARCH SUBJECT ........................................................................................................... 1

II. RESEARCH GOAL ................................................................................................................ 5

III. RESEARCH METHODOLOGY .......................................................................................... 6

IV. COURSE OF THE RESERACH .......................................................................................... 7

Chapter II. MUTUAL LEGAL ASSISTANCE MODEL ............................................ 11

Part I. THEORETHICAL FOUNDATIONS ........................................................................ 11

I. TRADITIONAL INTER-STATE COOPERATION IN CRIMINAL MATTERS.......................... 11

II. FORMS OF TRADITIONAL INTER-STATE COOPERATION IN CRIMINAL MATTERS .... 13

III. LEGAL RULES GOVERNING TRADITIONAL INTER-STATE COOPERATION IN

CRIMINAL MATTERS ...................................................................................................................... 14

IV. PAST AND PRESENT OF TRADITIONAL INTER-STATE COOPERATION IN CRIMINAL

MATTERS .......................................................................................................................................... 16

IV. BASIC INSTITUTES OF TRADITIONAL INTER-STATE COOPERATION IN CRIMINAL

MATTERS .......................................................................................................................................... 18

1. Prerequisites for cooperation ....................................................................................................... 19

2. Grounds for refusal of cooperation .............................................................................................. 21

3. Cooperation procedure ................................................................................................................ 22

V. PRELIMINARY CONCLUSION .................................................................................................. 23

Part II. NORMATIVE ANALYSIS ....................................................................................... 23

I. LEGAL INSTRUMENTS GOVERNING CROSS-BORDER EVIDENCE GATHERING

PURSUANT TO THE MUTUAL LEGAL ASSISTANCE MODEL ................................................ 24

1. European Convention on Mutual Assistance in Criminal Matters (CoE-MLA-1959) ................ 24

2. Convention Implementing the Schengen Agreement (CISA) ..................................................... 28

3. European Union Convention on Mutual Assistance in Criminal Matters (EU-MLA-2000) ....... 29

II. ANALYSIS OF MUTUAL LEGAL ASSISTANCE INSTRUMENTS IN THE AREA OF

CROSS-BORDER EVIDENCE GATHERING .................................................................................. 31

1. Position of the requesting State ................................................................................................... 32

II

1. 1. Procedures in relation to which assistance may be requested ............................................. 33

1. 2. Evidence gathering actions that may be requested .............................................................. 35

1. 3. Authorities competent to issue a request for assistance....................................................... 36

1. 4. Conditions for issuing a request for assistance .................................................................... 37

1. 5. Transmission of the request for assistance .......................................................................... 39

1. 6. The way in which request for assistance is executed ......................................................... 41

1. 6. 1. Decision on the evidence gathering action to be undertaken ...................................... 42

1. 6. 2. Law which regulates the gathering of evidence .......................................................... 42

1. 6. 3. Officials which undertake the action ........................................................................... 44

1. 6. 4. Time-limits for the execution of the request for assistance ......................................... 46

2. Position of the requested State .................................................................................................... 47

2. 1. 1. Political offence exception .......................................................................................... 48

2. 1. 2. Fiscal offences exception............................................................................................. 50

2. 1. 3. Sovereignty, security, ordre public and other essential interests of the requested State

................................................................................................................................................. 50

2. 2. Specific grounds for refusal of cooperation ........................................................................ 52

2. 2. 1. Double criminality ....................................................................................................... 53

2. 2. 2. Extraditable offences ................................................................................................... 55

2. 2. 3. Consistency with the law of the requested Party ......................................................... 56

3. Position of the individual............................................................................................................. 57

3. 1. Position of the defence ........................................................................................................ 58

3. 1. 1. Possibility for the defence to gather the evidence abroad ........................................... 59

3. 1. 2. Participation in the gathering of evidence abroad ....................................................... 59

3. 2. Position of the individual affected ....................................................................................... 60

4. Preliminary conclusion ................................................................................................................ 61

Chapter III. THE MUTUAL RECOGNITION MODEL ........................................... 65

Part I. THEORETHICAL FOUNDATIONS ........................................................................ 65

I. GENERALLY ABOUT THE PRINCIPLE OF MUTUAL RECOGNITION ................................. 67

1. Mutual recognition and harmonization of national criminal laws ............................................... 67

2. Mutual recognition in the internal market ................................................................................... 68

3. Mutual recognition and mutual trust ........................................................................................... 70

4. Introduction of the principle of mutual recognition in the area of criminal law ......................... 72

5. Mutual recognition and the Lisbon Treaty .................................................................................. 74

III

6. Criticism of the application of mutual recognition in the area of criminal law ........................... 75


II. MUTUAL RECOGNITION IN THE AREA OF JUDICIAL COOPERATION IN CRIMINAL

MATTERS .......................................................................................................................................... 78

1. Change of paradigm – from requesting assistance to ordering measures .................................... 78

2. Enhanced stringency of cooperation ........................................................................................... 79

2. 1. Reduced number of grounds for refusal .............................................................................. 80

2. 2. Strict deadlines .................................................................................................................... 82

3. Judicialization of cooperation ...................................................................................................... 82


Part II. NORMATIVE ANALYSIS ....................................................................................... 86

I. LEGAL INSTRUMENTS GOVERNING CROSS-BORDER GATHERING OF EVIDENCE

PURSUANT TO THE MUTUAL RECOGNITION MODEL ........................................................... 86

1. Framework Decision on Freezing Orders .................................................................................... 86

1. 1. Background and adoption .................................................................................................... 86

1. 2. Provisions of the Framework Decision ............................................................................... 88

1. 3. Implementation and use in practice ..................................................................................... 91

1. 4. Preliminary conclusion ........................................................................................................ 92

2. Framework Decision on the European Evidence Warrant .......................................................... 93

2. 1. Reasons for the adoption of another mutual recognition instrument in the area of evidence

..................................................................................................................................................... 93

2. 2. Main characteristics of the Proposal for a Framework Decision on the European Evidence

Warrant ........................................................................................................................................ 94

2. 2. 1. Scope of application .................................................................................................... 95

2. 2. 2. Specificities in the application of the mutual recognition logic .................................. 97

2. 2. 2. 1. Taking account of differences between the laws of Member States.................... 98

2. 2. 2. 2. Taking account of human rights considerations ................................................ 100

2. 2. 3. Preliminary conclusion .............................................................................................. 104

3. Directive on the European Investigation Order ......................................................................... 105

3. 1. Adoption of a new legislative instrument on the EU level ................................................ 105

3. 2. Initiative for a Directive on the European Investigation Order – Starting from Scratch ... 109

3. 2. 1. General scope of application .................................................................................... 110

3. 2. 2. Orientation towards the measure to be executed, and not to the evidence to be

collected ................................................................................................................................. 112

3. 2. 3. Radical limitation of grounds for refusal ................................................................... 113

IV

3. 2. 4. Removal of the complex provisions in the existing mutual recognition instruments 113

3. 2. 5. Combining mutual recognition and mutual legal assistance ..................................... 115


3. 3. Criticism of the Initiative................................................................................................... 119

3. 4. Adoption of the Directive .................................................................................................. 122

II. ANALYSIS OF THE FRAMEWORK DECISION ON THE EUROPEAN EVIDENCE

WARRANT ....................................................................................................................................... 123

1. Position of the issuing State ...................................................................................................... 123

1. 1. Proceedings in relation to which the EEW may be issued ................................................ 125

1. 2. Evidence gathering actions that may be the object of the EEW ........................................ 126

1. 3. Authorities competent to issue the EEW ........................................................................... 131

1. 4. Conditions for issuing the EEW ........................................................................................ 132

1. 5. Transmission of the EEW .................................................................................................. 133

1. 6. The way in which the EEW is executed ............................................................................ 135

1. 6. 1. Decision on the evidence gathering action to be undertaken .................................... 135

1. 6. 2. Law which regulates the gathering of evidence ........................................................ 136

1. 6. 3. Officials who undertake the action ............................................................................ 137

1. 6. 4. Time-limits for the execution of the EEW ................................................................ 138

2. Position of the executing State .................................................................................................. 140

2. 1. Grounds for refusal of recognition and execution of the EEW ......................................... 141

2. 1. 1. Ne bis in idem ............................................................................................................ 144

2. 1. 2. Double criminality ..................................................................................................... 146

2. 1. 3. Impossibility to execute the EEW ............................................................................. 147

2. 1. 4. Immunity or privilege under the law of the executing State ..................................... 148

2. 1. 5. The EEW has not been validated ............................................................................... 150

2. 1. 6. Refusal for jurisdictional reasons .............................................................................. 150

2. 1. 7. National security interests of the executing State ...................................................... 152

2. 1. 8. Shortcomings in the form .......................................................................................... 152

3. Position of the individual........................................................................................................... 153

3. 1. Position of the defence ...................................................................................................... 154

3. 1. 1. The possibility for the defence to gather the evidence abroad .................................. 155

3. 1. 2. Participation of the defence in the evidence gathering process in the executing State

............................................................................................................................................... 155

3. 1. 3. Possibility to challenge the issuing of the EEW ........................................................ 156

3. 2. Position of the individual affected by the EEW ................................................................ 156

V

3. 2. 1. Choice of the evidence gathering action as a fundamental rights guarantee ............. 157

3. 2. 2. Fundamental rights oriented grounds for refusal ....................................................... 157

3. 2. 3. Legal remedies........................................................................................................... 158

4. Preliminary conclusion .............................................................................................................. 158

III. ANALYSIS OF THE DIRECTIVE REGARDING THE EUROPEAN INVESTIGATION

ORDER ............................................................................................................................................. 160

1. Position of the issuing State ...................................................................................................... 161

1. 1. Scope of application .......................................................................................................... 161

1. 2. Authority competent to issue the EIO (issuing authority) ................................................. 163

1. 2. 1. Judicial and non-judicial authorities .......................................................................... 163

1. 2. 2. Validation procedure ................................................................................................. 164

1. 2. 3. Authorities competent to issue an EIO in administrative proceedings ...................... 165

1. 2. 4. Issuing of an EIO by an authority which is not an issuing authority ......................... 165


1. 3. Conditions for issuing the EIO .......................................................................................... 167

1. 3. 1. Availability under domestic law ................................................................................ 167

1. 3. 2. Necessity and proportionality .................................................................................... 168

1. 3. 3. Role of the executing authority ................................................................................. 170


1. 4. Transmission of an EIO ..................................................................................................... 171

1. 5. An EIO related to an earlier EIO ....................................................................................... 172

1. 6. The way in which the EIO is executed .............................................................................. 172

1. 6. 1. Decision on the investigative measure to be undertaken ........................................... 172

1. 6. 2. Recourse to a different kind of an investigative measure .......................................... 173

1. 6. 2. 1. The measure does not exist under the law of the executing State ..................... 174

1. 6. 2. 2. The measure would not be available in a similar domestic case ....................... 174

1. 6. 2. 3. A less intrusive measure .................................................................................... 175

1. 6. 2. 4. Obligation to inform the issuing authority ........................................................ 176

1. 6. 2. 5. Exclusion of the possibility to have recourse to a different kind of investigative

measure .............................................................................................................................. 177

1. 6. 2. 6. De facto refusal to recognize or execute an EIO ............................................... 178

1. 6. 3. Law which regulates the gathering of evidence ........................................................ 178

1. 6. 4. Officials who undertake the action ............................................................................ 180

1. 6. 5. Time-limits for the execution of the EIO .................................................................. 181

1. 6. 5. 1. The “assimilation principle” .............................................................................. 181

VI

1. 6. 5. 2. Time-limits for the recognition and execution of an EIO .................................. 182

1. 6. 5. 3. Derogation from the set time-limits in specific circumstances.......................... 184

2. Position of the executing State .................................................................................................. 184

2. 1. Obligation to recognize and execute the EIO .................................................................... 185

2. 2. Authority competent to recognize and execute the EIO (executing authority) ................. 185

2. 3. Grounds for non-recognition and non-execution of the EIO ............................................. 186

2. 3. 1. Optional nature of grounds for refusal ...................................................................... 186

2. 3. 2. Grounds for non-recognition or non-execution of an EIO ........................................ 187

2. 3. 2. 1. Immunity of privilege under the law of the executing State ............................. 187

2. 3. 2. 2. National security interests, protection of the source of information and classified

information ........................................................................................................................ 189

2. 3. 2. 3. The indicated measure would not be authorized in a similar domestic case in

relation to non-criminal proceedings ................................................................................. 189

2. 3. 2. 4. The execution of an EIO would be contrary to the ne bis in idem principle ..... 190

2. 3. 2. 5. Territoriality clause ........................................................................................... 191

2. 3. 2. 6. Fundamental rights protection ........................................................................... 192

2. 3. 2. 7. Double criminality ............................................................................................. 194

2. 3. 2. 8. Use of investigative measure is restricted to certain offences ........................... 195

2. 3. 3. Hidden grounds for refusal ........................................................................................ 196

2. 3. 4. Obligation to consult the issuing authority ................................................................ 196

2. 4. Transfer of evidence .......................................................................................................... 197

2. 4. 1. Ways in which evidence may be transferred ............................................................. 197

2. 4. 2. Suspension of evidence transfer ................................................................................ 198

2. 4. 3. Return of the transferred evidence ............................................................................. 199

3. Position of the individual........................................................................................................... 199

3. 1. Position of the suspect and his defence ............................................................................. 199

3. 1. 1. General remarks regarding the position of the defence ............................................. 200

3. 1. 2. Possibility for the defence to gather evidence abroad ............................................... 201

3. 1. 3. Participation of the defence in the execution of an EIO ............................................ 202

3. 1. 4. Legal remedies........................................................................................................... 203

3. 1. 4. 1. Decisions that can be challenged by a legal remedy ......................................... 203

3. 1. 4. 2. Information about the possibilities for seeking a legal remedy ......................... 204

3. 1. 4. 3. Consequences of a legal remedy ....................................................................... 205


3. 2. Position of an individual affected by the investigative measure ....................................... 207

VII

3. 2. 1. Recourse to a different type of investigative measure as a fundamental rights

guarantee ............................................................................................................................... 208

3. 2. 2. Fundamental rights oriented grounds for refusal ....................................................... 210

3. 2. 3. Legal remedies........................................................................................................... 210


4. Preliminary conclusion .............................................................................................................. 211

Chapter IV. CASE STUDY - HOME SEARCH IN THE TRANSNATIONAL

CONTEXT ...................................................................................................................... 213

I. HOME SEARCH IN CROATIAN AND GERMAN CRIMINAL LAW SYSTEM ........... 213

1. Search of home in Croatian criminal law system .......................................................................... 213

1. 1. Constitution of the Republic of Croatia ................................................................................. 213

1. 2. Criminal Procedure Act ......................................................................................................... 214

1. 2. 1. Requirements for undertaking the search of a home ..................................................... 214

1. 2. 1. 1. Material requirements ............................................................................................ 214

1. 2. 1. 2. Formal requirements .............................................................................................. 215

1. 2. 1. 2. 1. Home search on the basis of a court warrant ................................................. 215

1. 2. 1. 2. 2. Home search without a court warrant ............................................................ 216

1. 2. 2. Form of undertaking a home search .............................................................................. 217

2. Search of a home in the German criminal law system .................................................................. 218

2. 1. Basic Law of the Federal Republic of Germany ................................................................... 218

2. 2. 1. Requirements for undertaking the search of home ........................................................ 219

2. 2. 1. 2. Material requirements ............................................................................................ 219

2. 2. 1. 3. Formal requirements .............................................................................................. 220

2. 2. 2. Form of undertaking a home search .............................................................................. 222

3. Preliminary conclusion .................................................................................................................. 223

II. HOME SEARCH IN DIFFERENT MODELS OF CROSS-BORDER EVIDENCE

GATHERING .......................................................................................................................... 225

1. Mutual legal assistance model ....................................................................................................... 225

1. 1. Germany as the requesting State ........................................................................................... 226

1. 2. Croatia as the requested State ................................................................................................ 227

1. 3. Preliminary conclusion .......................................................................................................... 228

2. Mutual recognition model ............................................................................................................. 228

VIII

2. 1. Germany as the issuing State ................................................................................................. 229

2. 2. Croatia as the executing State ................................................................................................ 230

2. 3. Preliminary conclusion .......................................................................................................... 231

Chapter V. PROPOSED ALTERNATIVE MODELS ............................................... 233

I. MODEL OF A FULLY SUPRANATIONALIZED COOPERATION LAW ..................... 233

1. Main characteristics of the model .................................................................................................. 234

2. Its advantages and disadvantages .................................................................................................. 235

II. MODEL OF TRANSNATIONAL PROCEDURAL UNITY ............................................ 236

1. Applicability of substantive and procedural rules of only one Member State............................... 237

1. 1. Differentiation between national and transnational cases ..................................................... 238

1. 2. Determination of the responsible investigating State ............................................................ 238

1. 3. Applicable substantive and procedural criminal law ............................................................. 240

2. Increased care for the interests of the defendant ........................................................................... 244

2. 1. Eurodefence and its functions ............................................................................................... 244

2. 2. Defendant’s right of appeal ................................................................................................... 246


III. MODEL OF THE EUROPEAN PUBLIC PROSECUTOR’S OFFICE ........................... 249

1. Introduction ................................................................................................................................... 249

2. European Public Prosecutor’s Office in the Lisbon Treaty ........................................................... 250

3. Proposal for a Regulation on the European Public Prosecutor’s Office ........................................ 252

4. Cross-border Gathering of Evidence pursuant to the European Public Prosecutor’s Office Model

........................................................................................................................................................... 256

4. 1. European territoriality in ordering the investigative measures .............................................. 258

4. 2. Limitations arising out of national criminal procedural laws ................................................ 258

4. 3. Mutual admissibility of evidence .......................................................................................... 260


Chapter VI. CONCLUSION ......................................................................................... 263

I. RESULTS OF THE NORMATIVE ANALYSIS – COMPARISON OF THE MODELS . 263

1. Position of the requesting/issuing State ......................................................................................... 263

2. Position of the requested/executing State ...................................................................................... 268

IX

3. Position of the individual............................................................................................................... 270

II. WHICH MODEL FOR THE FUTURE OF EU CRIMINAL LAW .................................. 272

BIBLIOGRAPHY .......................................................................................................... 279

Books and articles ............................................................................................................................. 279

Legal instruments and official documents: ........................................................................................ 292

CURRICULUM VITAE OF THE AUTHOR ................................................................. 299

SELECTED BIBLIOGRAPHY OF THE AUTHOR ...................................................... 301

X

XI

LIST OF ABBREVIATIONS

CISA ………………………………………Convention Implementing the Schengen Agreement

CoE ……………………………………………………………………… Council of Europe

CoE-MLA-1959 ……………European Convention on Mutual Assistance in Criminal Matters

D-EIO …………… Directive regarding the European Investigation Order in Criminal Matters

EAW …………………………………………………………………..European Arrest Warrant

EEW ……………………………………………………………… European Evidence Warrant

EIO ……………………………………………………………...European Investigation Order

EU ……………………………………………………………………………European Union

EU-MLA-2000 ……… European Union Convention on Mutual Assistance in Criminal Matter

FD-EAW ………………………… Framework Decision on the European Arrest Warrant

FD-EEW …………………………Framework Decision on the European Evidence Warrant

FD-FO …………………………Framework Decision on Orders Freezing Property or Evidence

FO …………………………………………………… Order Freezing Property or Evidence

MLA ………………………………………………………………… Mutual legal assistance

MR ……………………………………………………………………… Mutual recognition

XII

1

Chapter I. INTRODUCTION

I. RESEARCH SUBJECT

As clearly arises out of the title of this research, its subject is the models of cross-border evidence

gathering in European Union (further on: EU) criminal law. In order for the research subject to be

clear, two notions have to be explained in more detail: the models of cross-border evidence

gathering on the one hand, and EU criminal law, on the other hand. We shall proceed by defining

the latter.

It is difficult to define EU criminal law when having a picture of national criminal law in mind,

as it has been developed in nation states – namely, as a system of rules defining punishable

behaviour that is adopted on an EU level and is uniformly applied throughout its territory.1 If one

tries to apply the classical notion of criminal law to EU criminal law, one inevitably comes to the

conclusion that EU criminal law does not exist, or at best that it is in statu nascendi.2 However, if

the notion of criminal law is understood in a broader sense,3 EU criminal law is much easier to

define.

It encompasses, primarily, criminal law provisions which are adopted at the supranational, EU

level. These can be divided into two groups: provisions which are uniformly applied and directly

enforceable throughout the EU and provisions which are not directly enforceable, but have to be

implemented in the national legal orders of Member States. In the first group of provisions,

criminal law provisions of stricto sensu do not exist yet, but the legal foundation for their

adoption has now been laid in the provisions of the Lisbon Treaty.4 Although criminal law

provisions in a strict sense do not exist, supranational administrative penal law exists and is

1 Satzger, Helmut, Internationales und Europäisches Strafrecht, Nomos Verlagsgesellschaft, Baden-Baden, 2013, p.

90. 2Ibid. See also Klip, André, European Criminal Law, Intersentia, Cambridge-Antwerp-Portland, 2012, p. 1, who

speaks of the “emerging European criminal justice system within the European Union”. 3 Sieber, Ulrich, Die Zukunft des Europäischen Strafrechts, Ein neuer Ansatz zu den Zielen und Modellen des

europäischen Strafrechtssystems, ZStW 121 (2009), p. 1. 4 Sieber, Ulrich, Einführung: Entwicklung, Ziele und Probleme des Europäischen Strafrechts, in Sieber, Ulrich et al.

(Eds.), Europäisches Strafrecht, Nomos Verlagsgesellschaft, Baden-Baden, 2011, p. 32.

2

often considered a part of EU criminal law.5 The second group of provisions is composed of the

so called Strafanweisungsrechts6, provisions adopted at the supranational level which are not

directly enforceable but need to be implemented into the national legal orders of Member States.

Regarding the subject of regulation, these include rules of substantive and procedural criminal

law7, as well as rules on judicial and police cooperation in criminal matters.8 There is also a third

group of rules adopted at the supranational level which is regarded as part of EU criminal law.

These are the rules on supranational institutions established to improve cooperation in criminal

matters within the EU.9

However, EU criminal law is not only composed of rules adopted at the supranational, EU level.

It is also composed of Europeanized national criminal law provisions. These are the rules adopted

at the national, Member State level, but emerged under the influence of EU law.10

This research is primarily oriented towards the criminal procedural law of the EU A Code of

criminal procedure for the EU does not exist yet; therefore the notion of the criminal procedural

law of the EU does not correspond to the notion of criminal procedural law, as it is understood in

the national criminal justice system of nation states. Since the criminal procedural law of the EU

does not exist yet, the EU is dependent on the criminal procedural laws of Member States. Rules

which form a part of the criminal procedural law of the EU can be divided into three groups. The

first group is composed of rules which regulate judicial cooperation in criminal matters between

the Member States of the EU. The second group is composed of rules, the purpose of which is to

harmonize the national criminal laws of Member States. EU criminal procedural law also

5 On sanctions that may be imposed on the level of the EU and their classification as “criminal law in a broader

sense”, see Satzger, 2013, 48-50. 6 Sieber, 2011, 32. 7 With regard to the competence of the EU to “establish minimum rules concerning the definition of criminal

offences and sanctions in the area of particularly serious crime with a cross-border dimension”, see Article 83(1) of

the Treaty on the Functioning of the European Union (OJ C 326, 26. 10. 2012, further on: TFEU). In relation to its

competence to establish minimum rules which concern: mutual admissibility of evidence, rights of individuals in

criminal procedure, rights of victims of crime, and any other aspect of criminal procedure identified in advance by

the Council, see Article 82(2) TFEU. 8 On competences of the EU in the areas of judicial and police cooperation in criminal matters, see Chapter 4 and 5

of the Title V (Area of Freedom, Security and Justice) TFEU. 9 Sieber, 2009, 1. 10 Sieber, 2011, 32. Even the law of the European Community, which did not have any competences in the area of

criminal law, exerted a lot of influence on national criminal justice systems of Member States. On the mechanisms

through the use of which these influences were effectuated, see Đurđević, Zlata, Mehanizmi utjecaja prava Europske

zajednice na kaznenopravne sustave država članica, Zbornik Pravnog fakulteta u Zagrebu, 54 (2004), p. 287-326.

3

encompasses rules on the establishment of EU cooperation institutions, which act in the judicial

cooperation process, next to the national criminal justice institutions of Member States.11

The notion of EU criminal law is often not clearly divided from the notion of European criminal

law. European criminal law is a notion that comprises not only EU criminal law, but also criminal

law provisions established at the level or under the influence of other regional European

organizations, primarily the Council of Europe. The subject of the research is thus limited to the

questions concerning EU criminal law.

After clearly limiting the scope of the research to questions regarding EU criminal law, other

notions forming the title of the research needs to be defined, such as models of cross-border

evidence gathering. Three questions need to be answered; why is the topic of cross-border

evidence gathering chosen as the subject of the research, what is the definition of cross-border

gathering of evidence, and why is the model approach used?

The question of criminal evidence has been one of the most debated issues in EU criminal law for

more than two decades now. A number of legal instruments that approached the subject have

been adopted in the meantime and significant activity has not only been present at the level of the

EU legislator. Namely, academia has also played a very active part in the debate over the future

of criminal evidence in EU law. Following intensive legislative and scientific activity, a number

of possible approaches to the question of evidence have been put forward. Despite such intensive

legislative and scientific activity, the problem of evidence in EU criminal law has not been

adequately resolved yet.12 This requires a systematic analysis of possible approaches to the

question of evidence in EU criminal law, their evaluation and comparison.

Cross-border gathering of evidence represents one of the mechanisms of inter-State cooperation

in criminal matters. It is a mechanism of cooperation which enables one State, the State where the

criminal procedure is taking place, to gather the evidence on the territory of another State, the

11 On current notion of EU criminal procedural law, see Nestler, Cornelius, Europäisches Strafprozessrecht, ZStW 2

(2004), p. 332. 12 In that context, the assessment that evidentiary law presents “the stumbling-stone” of the European integration

process in the area of criminal law must be accepted as justified, v. Đurđević, Zlata, Lisabonski ugovor: Prekretnica

u razvoju kaznenog prava u Europi, HLJKPP 15 (2008), p. 1091.

4

State on the territory of which the evidence is located. By enabling one State to gather the

evidence which is located on the territory of another State, cross-border gathering of evidence

represents a way of transnational enforcement of national criminal law. In the context of the EU,

it also represents one of the mechanisms for the development of a transnationally effective

criminal law.13

There are two models that can be used for the creation of a transnationally effective criminal law

– the cooperation and the supranational model.14 These various transitional models combine the

elements of “pure” cooperation and “pure” supranational models and therefore represent a mixed

form of the two ideal-models identified.15 In the cooperation model, criminal justice systems of

States are used as the foundation for the building of a transnationally effective criminal law.

Transnationally effective criminal law is built through the dialogue of national criminal justice

systems of States which share a common interest in the prosecution of transnational criminal

activities. On the other side, the supranational model is characterised by the construction of a

criminal legal order, the holders of which are not nation States, but organizations greater than

nation States.16 Both of these models, or their elements, can be used as the foundation of EU

criminal law. However, this study is primarily oriented towards the cooperation model.

Cooperation in cross-border gathering of evidence in EU criminal law is currently regulated by

legal provisions originating from two different models17 of judicial cooperation in criminal

matters. First group of legal rules derive from the mutual legal assistance (MLA) model, and the

second group of rules derive from the mutual recognition (MR) model. The Mutual legal

assistance model is a traditional model of judicial cooperation in criminal matters. It is a model of

judicial cooperation in criminal matters which was not originally developed in EU criminal law.

In the European context, it is a model developed in the framework of the Council of Europe,

which was later overtaken in EU criminal law. Within the EU framework, rules deriving from the

13 Sieber, 2009, 4 and further. 14 Sieber, 2009, 17, same author, 2011, 24-27. 15 Sieber, 2009, 23, same suthor, 2011, 27-29. 16Ibid. 17 Or sub-models. If the existence of the cooperation and the supranational model is taken as the starting premise of

the model analysis, it is logical to assume that variations which exist within a model represent sub-models. However,

during the long lasting process in which these sub-models were the object of various legislative initiatives and

scientific analysis, it has become common to refer to them as different “models” of cross-border evidence gathering

in EU criminal law. See, for example, Klip, 2012, 343, 356.

5

mutual legal assistance model have been supplemented in order to satisfy the specific needs of

intensified cooperation in criminal matters. Besides the engagement in the endeavour to make the

model of mutual legal assistance more suitable for its needs, the EU has also developed its own

model of judicial cooperation in criminal matters, the mutual recognition model. This model is

based on an idea which has, in the framework of the EU integration process, been originally

developed in EU internal market law and presupposes that differences between the laws of EU

Member States should not represent an obstacle for the achievement of common European

objectives. In the area of cooperation in criminal matters, this means that decisions issued in the

national criminal order of one Member State should, in principle, be recognized and executed in

every other Member State, despite the differences which exist between their criminal justice

systems. These two models of inter-State cooperation in the area of evidence are the primary

subject of the research undertaken here.

Although the analysis undertaken in the study is primarily oriented and limited to the mutual

legal assistance and mutual recognition cooperation model, other proposed and possible models

of cross-border evidence gathering in EU criminal law shall also be presented. Some of the

alternative models presented, presuppose the establishment of elements of a supranational

criminal legal order.

II. RESEARCH GOAL

Development of EU criminal law generally has been characterized by the use of the mutual

recognition model of inter-State cooperation. The principle of mutual recognition was chosen as

the cornerstone of judicial cooperation in criminal matters. The use of this model has proven to

be very problematic in the area of evidence. Every endeavour of EU lawmakers to introduce the

principle of mutual recognition in the area of evidence was followed by the counter-endeavour,

namely, to keep cooperation in the area of evidence on foundations built on the traditional model

of judicial cooperation in criminal matters – the mutual legal assistance model.

The aim of the study is to analyse, compare, and evaluate the use of these models in the area of

cross-border evidence gathering in EU criminal law. The starting premise for the analysis,

6

comparison and evaluation of the models is the hypothesis that in the framework of EU criminal

law, the most appropriate model for cross-border evidence gathering is the one which takes into

account and balances the interests of all actors involved in the process of cross-border evidence

gathering. In the framework of EU criminal law these actors are: the cooperating Member States,

the individual concerned, and the EU.

III. RESEARCH METHODOLOGY

In order to achieve the research goal, namely, to analyse, evaluate, and compare the models of

cross-border evidence gathering in EU criminal law, the research uses the following scientific

methods which are characteristic for the legal sciences: theoretical method, normative method,

comparative method, and the case study method.

A theoretical method is used in various parts of the study. In Chapters II and III, in which mutual

legal assistance and mutual recognition models of cross-border evidence gathering are presented

and analysed, it is used in order to present the historical background and theoretical foundations

of the models. It sets the models of cross-border evidence gathering in a broader perspective of

international (criminal) and EU law in order to offer better understanding of their basic

principles. It is also the primary method used in Chapter V, which deals with proposed alternative

models of cross-border evidence gathering.

The study also uses and focuses on the normative method, the provisions of legal instruments

which govern cross-border evidence gathering in EU criminal law, which are founded on mutual

legal assistance, or the mutual recognition model. When conducting the normative analysis and in

order to evaluate the models, the provisions of legal instruments shall be seen from three different

perspectives: the perspective of the Member State where the criminal procedure is taking place,

the perspective of the Member State where the evidence is located, and the perspective of the

individual concerned and their defence. The purpose of the normative analysis is to evaluate the

extent to which the analysed models satisfy the interests of different actors involved in the

process of cross-border evidence gathering in EU criminal law.

7

A Case study method is used in order to analyse and evaluate the functioning of the models under

investigation in a situation which is typical of cross-border evidence gathering, the searching of a

home in a transnational context. In order to undertake the case study, an example of cooperation

between the competent judicial authorities of Croatian and Germany shall be given.

In the comparative part of the research, the main characteristics of the mutual legal assistance and

the mutual recognition model of cross-border evidence gathering shall be compared. The results

of the theoretical analysis, the analysis and evaluation undertaken using the normative method, as

well as the results of the case study, shall be used as the foundation for the comparison of the

models.

IV. COURSE OF THE RESERACH

The research is divided into six chapters: Chapter I is the Introduction, where the explanation of

the Research subject (I.), Research goal (II.), Methodology of the research (III.), and Course of

the research is given (IV.).

In Chapters II and III of the research, the mutual legal assistance and the mutual recognition

models of cross-border evidence gathering are presented, analysed and evaluated. Each of these

Chapters is divided into two parts. In Part I of each Chapter, theoretical foundations for the

models are given. In Part II of each Chapter normative analysis of legal provisions governing

cross-border evidence gathering in EU criminal law and founded either on mutual legal

assistance, or the mutual recognition model of cooperation is given. The normative analysis is

divided into three sections: Position of the requesting/issuing State, Position of the

requested/executing State, and Position of the individual. Normative analysis undertaken in

Chapter III does not fully follow the pattern introduced in Chapter II. Namely, while in the

normative analysis in Chapter II all mutual legal assistance instruments are analysed together and

joint results are presented. While in the normative analysis undertaken in Chapter III, the most

important instruments which introduced the principle of mutual recognition in the area of

evidence are presented. The Framework Decision on the European Evidence Warrant and

Directive regarding the European Investigation Order in Criminal Matters, were analysed

8

separately. Although such an approach can be criticised, it was necessary in order to bring a clear

and comprehensive presentation and analysis of the latest and most important EU instrument in

the area of cross-border evidence gathering, the Directive regarding the European Investigation

Order in Criminal Matters. This Directive was adopted in April 2014 and so far it has not been an

object of comprehensive scientific analysis. The interests of “methodological purity” have,

therefore, been sacrificed to the interests of clear and comprehensive analysis of the most recent

and the most important instrument in this highly dynamic and normatively unstable area of EU

criminal law. Furthermore, separate presentation and normative analysis of mutual legal

assistance instruments would unnecessarily overburden the text of the study. Namely, these

instruments, as the analysis will show, follow the same basic approach to questions of

cooperation in criminal matters and therefore represent a stable and predictable methodological

regime. On the other hand, mutual recognition instruments show a lot of divergences in the

implementation of fundamental aspects of the mutual recognition principle, and clear

presentation of these differences requires a separate presentation and analysis of respective

instruments.

In Chapter IV a case study is conducted, the object of the case study is to present the practical

functioning of the mutual legal assistance and the mutual recognition model of cross-border

evidence gathering in the example of a home search. A presentation of a home search in a

transnational context is given as an example of cooperation between Croatia and Germany. This

Chapter opens with the presentation of legal regimes for a home search in the Croatian and

German legal systems. (I.) A presentation of the legal regime is followed by the analysis of the

operation of a home search in the mutual legal assistance and the mutual recognition models, as

an example of cooperation between Croatian and German judicial authorities.

Chapter V is dedicated to the presentation of other possible and proposed models of cross-border

evidence gathering in EU criminal law. Three models are presented in this part of the work: (I.)

Model of partial harmonization of national criminal laws, (II.) Model of transnational procedural

unity and (III.) The model of the European Public Prosecutor’s Office.

9

The sixth Chapter is the Conclusion and here a synthesis of the findings of the previous parts of

the research is given. The central part of the Conclusion is the summarizing chapter which shows

the results of the comparison between the mutual legal assistance and the mutual recognition

model of cross-border evidence gathering in EU criminal law. Besides the results of the

comparison, the Conclusion also gives a view of the future regarding the cooperation in the area

of criminal evidence and EU criminal law.

10

11

Chapter II. MUTUAL LEGAL ASSISTANCE MODEL

Part I. THEORETHICAL FOUNDATIONS

Mutual legal assistance (further on: MLA) model of cross-border evidence gathering is a part of a

broader concept of traditional international cooperation in criminal matters. In order to correctly

understand and comprehensively analyse legal rules governing cross-border evidence gathering

in this model, it is necessary to look at the model in the broad perspective of traditional

international cooperation in criminal matters. Principles and procedures which are applicable to

cross-border evidence gathering in the model of MLA are inextricably connected with the

principles and procedures of traditional international cooperation in criminal matters. This is why

it is necessary to shortly present basic issues concerning international cooperation in criminal

matters before referring to cross-border gathering of evidence in the MLA model. Such a

presentation will offer a better understanding of the framework within which the MLA model

developed.

I. TRADITIONAL INTER-STATE COOPERATION IN CRIMINAL MATTERS

International cooperation in criminal matters could be defined as encompassing all actions and

measures undertaken by criminal procedural authorities of one state at the request of another state

in order to enable prosecution, adjudication or enforcement of a sentence in a criminal matter.18 It

could also be defined as composed of “mechanisms states use to assist each other in the

prosecution of criminal offenders”.19

Normally, states can rely on their own enforcement mechanisms in order to be able to enforce

their criminal law. When a criminal offence is committed, it is usually enough for domestic law-

enforcement and judicial authorities to use the procedures of domestic law in order to apply their

18 Krapac, Davor, Međunarodna kaznenopravna pomoć, Narodne novine, Zagreb, 2006, p. 3. 19 Currie, Robert J., International and Transnational Criminal Law, Irwin Law Inc., Toronto, 2010, p. 445.

12

substantive criminal law, which is to prosecute and punish the crime. However, in certain

situations, reliance only on “domestic forces” is not enough to bring a criminal prosecution to a

successful end. This happens when a criminal offence that has to be investigated has some

connection with a foreign country. It can be that the perpetrator of the offence is found on the

territory of another state, or that the evidence needed for the clarification of the case is located in

another state or that any other action in connection with criminal procedure needs to be

undertaken on the territory of another state. In these instances, a state needs to ask a foreign state

for assistance if it wants to successfully bring the criminal procedure to an end. In other words, it

needs to make use of mechanisms of international cooperation in criminal matters.

The need for international cooperation in criminal matters arises out of conflict between the

interests of domestic criminal procedure and the principles of international law. The needs of

domestic criminal procedure demand that certain procedural actions be undertaken on the

territory of another state. However, principles of international law prohibit this, pursuant to one

of the founding principles of international law, the principle of state sovereignty, sovereign acts

of the state can only be undertaken on its own territory. Since criminal procedural actions also

represent sovereign acts, official bodies of the state can perform these acts only on the territory of

their state.20 In other words, the state’s jurisdiction to enforce its criminal law stops at its own

borders.21 This means that the undertaking of a criminal procedural action on the territory of

another state represents a breach of international law. In order to satisfy the needs of its domestic

criminal procedure and the demands arising out of public international law, a state needs to

approach a foreign state and ask it: either to allow another state to undertake certain procedural

actions on its territory or to undertake certain procedural actions on its territory to the benefit of

the criminal procedure of another state.22 The latter practice is known as international cooperation

in criminal matters.

20 Karl-Friedrich Nagel, Beweisaufnahme im Ausland, Rechtsgrundlagen und Praxis der internationalen Rechtshilfe

für deutsche Strafverfahren, Max-Planck-Institut für ausländisches und internationales Strafrecht, Freiburg i. Br.,

1988, p. 2. 21 Currie, 2010, 92-93. 22 Currie, 2010, 94.

13

II. FORMS OF TRADITIONAL INTER-STATE COOPERATION IN CRIMINAL

MATTERS

Various forms of inter-state cooperation are gathered under the umbrella of international

cooperation in criminal matters. The most common way of categorizing all forms of international

cooperation in criminal matters is to divide them into two: extradition and mutual legal assistance

in criminal matters.23 The cross-border gathering of evidence represents one of the mechanisms

of mutual legal assistance in criminal matters.

Extradition is the oldest mechanism of international cooperation in criminal matters.24 “It is the

process by which a person found in one state is surrendered to another for trial and

punishment.”25 Extradition differs from other mechanisms of international cooperation in

criminal matters by its degree of intrusiveness into the rights of the individual.26

Mutual legal assistance could be defined as encompassing all actions and measures that criminal

procedural authorities of one state are undertaking to the benefit of the criminal procedure that is

taking place in another state.27 It includes primarily the service of foreign judicial summons and

decisions and the collecting of evidence for the criminal procedure of another state.28

Besides extradition and mutual legal assistance, other forms of international cooperation in

criminal matters exist. These forms of cooperation have developed recently and they include:

execution of foreign penal sentences, recognition of foreign penal judgments, transfer of criminal

23 Currie, 2010, 445. In German legal tradition, it is common to refer to extradition (Auslieferung) as the “big legal

assistance” (große Rechtshilfe) and to mutual legal assistance as the “small legal assistance” (kleine Rechtshilfe), see

Nagel, 1988, 34-35. 24 Bassiouni, M. Cherif, The Modalities of International Cooperation in Penal Matters, in Bassiouni, M. Cherif

(Ed.), International Criminal Law, Multilateral and Bilateral Enforcement Mechanisms, Martinus Nijhoff

Publishers, 2008 (further on: Bassiouni, 2008a), p. 4. 25 Bassiouni, M. Cherif, Extradition – Law and Practice of the United States, in Bassiouni, M. Cherif (Ed.),

International Criminal Law, Multilateral and Bilateral Enforcement Mechanisms, Martinus Nijhoff Publishers, 2008

(further on: Bassiouni 2008b), p. 269. 26 Pursuant to some commentators, apart from sentence of imprisonment, it represents the most severe intrusion of a

state on human rights and freedoms of an individual, see Schomburg, Wolfgang; Lagodny, Otto; Gleß, Sabine;

Hackner, Thomas, Internationale Rechtshilfe in Strafsachen, Verlag C. H. Beck, München, 2012, p. 4. 27 Nagel, 1988, 35. 28 Krapac, 2006, 95.

14

proceedings, freezing and seizing of assets deriving from criminal conduct, intelligence and law-

enforcement information-sharing, and regional and sub-regional judicial spaces.29

III. LEGAL RULES GOVERNING TRADITIONAL INTER-STATE COOPERATION IN

CRIMINAL MATTERS

International cooperation in criminal matters developed as a relationship between independent

states. As such, it is understandable that primary rules regulating such cooperation are the rules of

international law. Among the rules of international law, inter-state agreements are of the primary

importance here. The fact that international cooperation in criminal matters is regulated primarily

by inter-state agreements indicates its contractual character.30 International cooperation in

criminal matters is regulated by both, multilateral and bilateral international agreements.

For the European context, until recently the development of multilateral instruments of

international cooperation in criminal matters was primarily in the hands of the Council of Europe.

Within the Council of Europe a “comprehensive network of international treaties” have been

established, which “provide for all conceivable forms of cooperation”31. The most important

among Council of Europe treaties on international cooperation in criminal matters are the

European Convention on Extradition32 and the European Convention on Mutual Assistance in

Criminal Matters.3334 Over the past two decades the European Union and its Member States have

created a system of international cooperation in criminal matters parallel to that of the Council of

Europe.35

29 Bassiouni, 2008a, 4, 9-28. 30 Krapac, 2006, 4. 31 Bartsch, Hans-Jürgen, International cooperation in criminal matters within the Council of Europe, in Bassiouni,

M. Cherif et al. (Eds.), European cooperation in penal matters: Issues and perspectives, CEDAM, 2008, p. 433. 32 It was signed in 1957, and it came into force in 1960. It was supplemented by three additional protocols:

Additional Protocol to the European Convention on Extradition (signed in 1975, came into force in 1979), Second

Additional Protocol to the European Convention on Extradition (signed in 1978, came into force in 1983) and the

Third Additional Protocol to the European Convention on Extradition (signed in 2010, came into force in 2012). 33 It was signed in 1959, and it came into force in 1962. It was supplemented by two additional protocols: Additional

Protocol to the European Convention on Mutual Assistance in Criminal Matters (signed in 1978, came into force in

1982) and the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters

(signed in 2001, came into force in 2004). 34 For a full list of Council of Europe treaties, see the Council of Europe website:

http://www.conventions.coe.int/Treaty/Commun/ListeTraites.asp?CM=8&CL=ENG (6 December 2013). 35 Bartsch, 2008, 437.

http://www.conventions.coe.int/Treaty/Commun/ListeTraites.asp?CM=8&CL=ENG

15

Besides multilateral agreements, states created a number of bilateral agreements on international

cooperation in criminal matters. It is noticeable that states give precedence to the practice of

bilateralism over the practice of multilateralism.36 This can be easily explained by the fact that

bilateral agreements enable states to better adapt the provisions of the agreement to the specific

needs of cooperation with an individual state.

Besides rules of international law, international cooperation in criminal matters is also regulated

by the national laws of states. In the European legal circle, there is a contemporary trend by

which a growing number of states adopt statutes that comprehensively regulate all aspects of

international cooperation in criminal matters.37 These regulations are usually adopted in a special

statute independent of the national rules of criminal procedure. By doing this, states wish to

show, on a normative technical level, that rules regulating international cooperation in criminal

matters, regard their goals differently than national rules of criminal procedure. The goal of

national rules of criminal procedure is to apply its own ius puniendi, while the goal of national

rules on international cooperation in criminal matters is to help the realization of the ius puniendi

of another state.38

When it comes to the relationship between the rules of international law and the rules of national

law which regulate international cooperation in criminal matters, rules of international law have

precedence. Rules of national law are applied only subsidiary, if there is no rule of international

law that can be applied to a certain situation.39

The main characteristic of the legal framework of international cooperation in criminal matters is

its complexity,40 which arises out of the fact that multiple legal sources can be applied to a certain

situation. In this context, multilateral treaties can be used as a valuable solution to diminish the

complexity of the legal framework. The goal of such treaties, besides simplification and

intensification of international cooperation in criminal matters, is the harmonization of the laws

36 Bassiouni, 2008a, 30. 37 Krapac, 2006, 6. 38 Krapac, 2006, 5. 39 Krapac, 2006, 6-7. 40 Nagel, 1988, 38.

16

and practice of the contracting states.41 However, the harmonizing possibilities of such treaties

have not reached their full potential and there are two main reasons for this. First of all,

multilateral treaties do not bring an end to the practice of bilateral treaties. After becoming a

party to a multilateral treaty, contracting states still have the possibility to enter into bilateral

treaties by which certain provisions of multilateral treaties can be supplemented or their

application facilitated.42 The other reason relates to the possibility that is open to contracting

states, to enter reservations to provisions of a multilateral treaty. It can be that the reservation can

be entered in relation to a specific provision of the treaty,43 or that there is a general possibility

foreseen by the treaty enabling contracting states to enter reservations to any of its provisions.44

IV. PAST AND PRESENT OF TRADITIONAL INTER-STATE COOPERATION IN

CRIMINAL MATTERS

The history of international cooperation in criminal matters is primarily the history of extradition.

Until the 19th century, extradition was the only form of international cooperation in criminal

matters. Mutual legal assistance, as another form of international cooperation in criminal matters,

developed in the course of the 19th century. Extradition historically developed as a relationship

between the states’ sovereigns. Initially, extradition was requested and granted only in the case of

offences that today would be considered political offences.45 Later, during the course of the 18th

and the 19th century, following the development of the ideas of the school of natural law, pursuant

to which the prosecution of serious crimes was seen as a natural obligation of states arising out of

the need to protect values that are common to all people, extradition was expanded to other

criminal offences.46 Such development was followed by the conclusion of bilateral extradition

agreements and the development of the first national extradition laws.47 At the same time, other

forms of international cooperation in criminal matters started developing. Their primary aim was

to help the criminal procedure of another state by undertaking certain procedural actions, like the

41 Nagel, 1988, 41. 42 See, for example, Article 26, paragraph 3 of the European Convention on Mutual Assistance in Criminal Matters. 43 See, for example, Article 5, paragraph 1, Article 7, paragraph 3 and Article 16, paragraph 2 of the European

Convention on Mutual Assistance in Criminal Matters. 44 See, for example, Article 23, paragraph 1 of the European Convention on Mutual Assistance in Criminal Matters. 45 Krapac, 2006, 7-8. 46 Krapac, 2006, 8. 47 Krapac, 2006, 9.

17

interrogation of witnesses, the service of summons, decisions and the collection of other

evidence, to its benefit. Basic ideas, principles and procedures of international cooperation in

criminal matters we know today developed in the period between the First and the Second World

War.48 In the period after the Second World War, international cooperation in criminal matters

further developed and intensified. This newest development was characterized by the conclusion

of a great number of bilateral and multilateral treaties on international cooperation in criminal

matters and by the emergence of new forms of international cooperation in criminal matters. (see

supra B. I. 2.).

Regarding the modern developments in international cooperation in criminal matters, three main

lines of development can be detected: international cooperation in criminal matters is becoming

more important than ever before, the position of the individual in international cooperation in

criminal matters has shifted from a mere object, to the subject of cooperation proceedings with

cooperation not only developing on an inter-state (horizontal) level, but also on state-

supranational bodies (vertical) level.

One of the main characteristics of contemporary crime is that it is becoming more and more

transnational.49 This is due to the fact that the world is becoming closer than ever before. Crime is

no longer confined to the boundaries of a national state. In order to fight the growing threat of

transnational crime, states need to cooperate. This is why international cooperation in criminal

matters is becoming more important than ever before.50

Judicial assistance in criminal matters has traditionally developed as an inter-state relationship.

Only sovereign states were considered to be subjects of it. Therefore, judicial assistance only had

two dimensions, the dimension of the requesting and the dimension of the requested state.

However, in the last few decades this “two-dimensional model” of judicial assistance in criminal

matters has become more and more a “three-dimensional model”, with the inclusion of the

48 Krapac, 2006, 9. 49 Eser, Albin, Lagodny, Otto (Eds.), Principles and Procedures for a New Transnational Criminal Law, Max-

Planck-Institut für Ausländisches und Internationales Strafrecht, Freiburg i. Br., 1992, p. V. Generally about the

phenomenon of transnational (organized) crime see Albrecht, Hans-Jörg, The UN Transnational Crime Convention,

An Introduction, in Albrecht, Hans-Jörg, Fijnaut, Cyrille (Eds.), The Containment of Transnational Organized

Crime, Max-Planck-Institut für ausländisches und internationales Strafrecht, Freiburg i. Br., 2002, p. 1-18. 50 Eser/Lagodny, 1992, V.

18

individual as its third subject.51 From being a mere object of an inter-state relationship, the

individual became its subject and this shift in the position of the individual can be clearly seen as

an example of prerequisites for judicial assistance or its grounds for refusal: next to traditional

prerequisites and grounds for refusal which have an exclusively inter-state character. New ones

started to appear, which are not directed at the protection of the interests of states involved, but at

the protection of the individual concerned.52

In the last two decades international cooperation in criminal matters is no longer an exclusive

state to state matter. Various forms of cooperation were developed between states and

international/supranational organizations. Now there are two models of international cooperation

in criminal matters recognized as horizontal (inter-state) cooperation and vertical

(international/supranational organization-state) cooperation in criminal matters.53 Vertical

cooperation in criminal matters is a very important mechanism for the functioning of

international criminal tribunals. These tribunals do not have their own law enforcement

mechanisms and have to turn to national states in order to be able to perform their functions

properly. In the context of international criminal tribunals, international cooperation between the

tribunals and the states represents a mechanism of indirect enforcement of international criminal

law.54

IV. BASIC INSTITUTES OF TRADITIONAL INTER-STATE COOPERATION IN

CRIMINAL MATTERS

Traditional international cooperation in criminal matters is based on two main ideas: solidarity

between states and state sovereignty. States are showing solidarity through their willingness to

assist the criminal procedure in another state. However, their solidarity in international

cooperation in criminal matters is strongly limited by the ideas arising out of the principle of

national sovereignty. As a result, the basic idea of international cooperation in criminal matters is

51 Gleß, Sabine, Beweisrechtsgrundsätze einer grenzüberschreitenden Strafverfolgung, Nomos Verlagsgesellschaft,

Baden-Baden, 2006, p. 112-113, Schomburg et al., 2012, 2. 52 Gleß, 2006, 113. 53 Schomburg et al., 2012, 3. 54 Bassiouni, 2008a, 3.

19

the following: a state which is asked to assist the criminal procedure in another state is willing to

do this, but only to the extent that such assistance does not jeopardise its sovereign interests. This

basic idea is reflected in the main principles of international cooperation in criminal matters,

which can be summarized in the following way: prerequisites for cooperation, grounds for refusal

of cooperation and cooperation procedure.

Only the core principles of international cooperation in criminal matters shall be presented here.

Presentation of the basic principles of international cooperation in criminal matters is a difficult

task because the relevant principles differ depending on the form of cooperation which is the

subject of the analysis. Principles of international cooperation in criminal matters have developed

mainly in relation to extradition, as the oldest form of cooperation. These principles are not

necessarily applied to other forms of international cooperation in criminal matters, or are not

applied to the same extent.55 Even when it comes to a single form of international cooperation in

criminal matters, for example, extradition, the presentation of its basic principles is a difficult

task because rules applicable to extradition differ depending on the legal instrument in which it is

regulated. Due to these reasons, the presentation of the basic principles for all forms of

international cooperation in criminal matters that are necessary requires the application of a high

level of generality.56 Basic principles of international cooperation in criminal matters can refer to

one of the following group of rules: prerequisites for cooperation, grounds for refusal of

cooperation and cooperation procedure.

1. Prerequisites for cooperation

When it comes to prerequisites for cooperation, the basic ones are reciprocity, double criminality

of the underlying offence, and specialty.57

Reciprocity is a traditional principle of international cooperation in criminal matters, which is

based on the idea that the requested state is ready to provide assistance to the requesting state

55 Ligeti, Katalin, Strafrecht und strafrechtliche Zusammenarbeit in der Europäischen Union, Duncker & Humbolt,

Berlin, 2005, p. 92. 56 Currie, 2010, 450. 57 Ligeti, 2005, 92.

20

only if the requesting state is ready to assist the requested state in a similar situation.58 The

requested state provides assistance in expectation of being provided assistance, do ut des.59 The

principle of reciprocity has lost a lot of its importance with the development of bilateral and

multilateral treaties on international cooperation in criminal matters, where relations between

states are no longer regulated by mutuality, but by rules of international agreements. Today, it

remains important in those areas of cooperation which are not regulated by treaties or in relations

between states which do not have agreements on international cooperation in criminal matters.60

Despite these developments, the principle of reciprocity remains an important guiding principle

in international cooperation in criminal matters, as well as in all other areas of international law.61

The double criminality rule requires that the offence underlying the request for cooperation is

recognized as such both in the law of the requesting and the requested state.62 The idea behind

this principle is that a state cannot be expected to assist the criminal procedure of another state if

such assistance would run contrary to its criminal policy.63 Traditionally, this principle was

considered to protect the sovereignty of the states concerned. However, today, with the

development of the three-dimensional model of international cooperation in criminal matters, it is

also considered to protect the rights of the individual. It is considered that the requested state is

acting contrary to the principle of the rule of law and the principle of guilt, if it is limiting the

rights of the individual in the execution of a request for assistance that refers to a conduct that is

not recognized as a criminal offence pursuant to its law.64 In the area of international cooperation

in criminal matters, the double criminality principle is primarily applied to extradition, with it

being of less importance in the area of mutual legal assistance. There it is applied only if the

request for mutual legal assistance relates to the undertaking of a coercive measure in the

requested state.65 This is so because mutual legal assistance does not usually require an

intervention of the requested state in the rights of the individual. Coercive measures which are

undertaken on the territory of the requested state represent an exception.

58 Mavany, Markus, Die Europäische Beweisanordnung und das Prinzip der gegenseitige Anerkennung, C. F.

Müller, 2012, p. 38. 59 Gleß, Sabine, Internationales Strafrecht, Helbing Lichtenhahn Verlag, Bern, 2011, p. 92. 60 Krapac, 2006, 40. 61 Currie, 2010, 450. 62 Ligeti, 2005, 93. 63 Gleß, 2011, 95. 64 Gleß, 2011, 96. 65 Ligeti, 2005, 94.

21

Effects of the principle of specialty are in principle, equal to those relating to the principle of

double criminality, limited to extradition. It means that the requesting state is permitted to

criminally prosecute the person only for those offences, committed before the request for

cooperation was submitted, for which the requested state approved extradition.66 Like the

principle of double criminality, it also serves to protect the interests of the states involved, but

also the individual concerned. It is a guarantee that in the requesting state he/she will not be

criminally prosecuted for criminal offences for which extradition was not approved.67

2. Grounds for refusal of cooperation

Grounds for refusal of international cooperation in criminal matters are often referred to as

negative prerequisites of cooperation.68 Having in mind different forms of international

cooperation in criminal matters and different instruments regulating them, it is even more

difficult to give a general overview of basic grounds for refusal than a general overview of the

basic prerequisites for international cooperation in criminal matters. Grounds for refusal of

cooperation can be categorized in different ways. It can be differentiated between the grounds of

refusal that pertain to substantive law, those that pertain to procedural law and those that pertain

to public law.69 Grounds for refusal pertaining to substantive law relate to the character of the

underlying offence. Those that pertain to procedural law relate to the concurrent jurisdiction of

the requested state, statute of limitation and the application of the ne bis in idem principle. Those

pertaining to public law relate to the nationality of the offender and the ordre public clause.70

Grounds for refusal can also be categorized pursuant to the interest they protect. If this criterion is

used, grounds for refusal can be divided into the following categories: those that serve to protect

the interests of the states involved, which serve to protect the interests of the individual

concerned and those of a mixed nature.71

66 Schomburg et al., 2012, 7. 67 Krapac, 2006, 45. 68 Ligeti, 2005, 92. 69 Krapac, 2006, 46. 70 Krapac, 2006, 46. 71 Schomburg et al., 2012, 6.

22

Grounds for refusal of cooperation in the traditional international cooperation in criminal matters

are not only numerous, but are also broadly defined. Their broadness enables the requested state

to refuse cooperation whenever it considers that such cooperation would run contrary to its

essential interests. The number and the broadness of the grounds for refusal enables cooperating

states to better protect their sovereignty and other essential interests, on one side, but, on the other

side, it has a negative effect on the efficiency of cooperation.72

When it comes to subjects of international cooperation in criminal matters, traditionally, it was

considered that only states are subjects of it. Individual concerned was considered as a mere

object of international cooperation in criminal matters. But with the development of human rights

law after the Second World War, the protection of the interests of individual in international

criminal law cooperation started coming more and more to the fore.73

3. Cooperation procedure

The states which are involved in the process of international cooperation in criminal matters are

called the requesting and the requested state. The procedure of international cooperation in

criminal matters starts with the transmission of the request for assistance from the requesting to

the requested state. By sending a request for assistance, a relationship between the states

concerned is created. Although the direct beneficiary of the international cooperation procedure is

the judicial authority of the requesting state, the relationship is not created between the judicial

authority of the requesting and the requested state, but between the states concerned. This is why

requests for assistance are not sent directly between the competent judicial authorities, but

between the executive branches of power of the states concerned. Originally, requests for

assistance were sent through diplomatic channels. These channels were later replaced with

communication between the ministries (of justice) of the states involved. Communication through

the ministries of justice of the states involved enables the requested state to evaluate the request

from the standpoint of its political interests.

72 Sieber, 2009, 28 and further. 73 This lead to the evolvement of a three-dimensional model of international coopreation in criminal matters, see

supra B. I. 4.

23

V. PRELIMINARY CONCLUSION

In the mutual legal assistance model, cross-border gathering of evidence is one of the

mechanisms of mutual legal assistance, and mutual legal assistance is one of the basic forms of

international cooperation in criminal matters. International cooperation in criminal matters

historically developed through the practice of extradition, but with time it expanded to other

forms of inter-state cooperation in criminal matters, from mutual legal assistance to modern

forms of international cooperation in criminal matters. Although mutual legal assistance enjoys

some level of independence within the framework of international cooperation in criminal

matters, its basic principles and procedures are developed under the strong influence of basic

principles and procedures of international cooperation in criminal matters. These basic principles

show great consideration for the interests of States involved in cooperation, especially the

requested State, which is given the opportunity to refuse cooperation whenever it is contrary to its

essential interests, by having recourse to one of the broadly defined grounds for refusal of

cooperation. Such a standpoint affects the efficiency of international cooperation in criminal

matters in a negative way.

Besides these shortcomings in the area of efficiency, international cooperation in criminal matters

is also flawed in relation to the position of an individual. Initially, the individual was seen as only

an object of the procedures for international cooperation in criminal matters, but, after the Second

World War, with the development of human rights law, rules of international cooperation in

criminal matters developed in the direction of recognizing the individual as a subject of

international cooperation in criminal matters.

Part II. NORMATIVE ANALYSIS

After a short presentation of theoretical foundations of traditional inter-state cooperation in

criminal matters, the following part of the work shall be dedicated to the presentation and

analysis of legal rules governing the cross-border gathering of evidence which are founded on the

mutual legal assistance model. First, the legal instruments in which rules on cross-border

24

evidence gathering, pursuant to the mutual legal assistance model are found and shall be

presented.

I. LEGAL INSTRUMENTS GOVERNING CROSS-BORDER EVIDENCE GATHERING

PURSUANT TO THE MUTUAL LEGAL ASSISTANCE MODEL

These rules are found in the following legal instruments:

1. European Convention on Mutual Assistance in Criminal Matters and its Protocols,

2. Convention Implementing the Schengen Agreement,

3. Convention on Mutual Assistance in Criminal Matters between the Member States of

the European Union and its Protocol.

Each of these conventions was adopted within the framework of a different form of international

cooperation between states and the European Convention on Mutual Assistance was adopted into

the framework of the Council of Europe. A Convention Implementing the Schengen Agreement

in the framework of cooperation of five European Union Member States, outside of the European

Union institutional framework and Convention on Mutual Assistance in Criminal Matters

between the Member States of the European Union in the European Union framework. Despite

the fact that they are adopted within a different form of international cooperation, they all form a

part of the acquis communautaire in the area of judicial cooperation in criminal matters.74

First, a short presentation of legal instruments with reference to their historical development shall

be given.

1. European Convention on Mutual Assistance in Criminal Matters (CoE-MLA-1959)

After the Second World War, the World started to move closer together and various forms of

cooperation began to develop between states. This was especially characteristic for the states

74 Generally on acquis communautaire in the area of judicial and police cooperation in criminal matters, see Ligeti,

2005, 49-51.

25

which shared common political and legal ideas and values. Increased cooperation,

communication and transport between states have also lead to an increased need for cooperation

in criminal matters. In such a social and political surrounding, it was only natural that ideas about

the creation of multilateral criminal cooperation mechanisms appeared.

The European Convention on Mutual Assistance in Criminal Matters75 (further on: CoE-MLA-

1959), Convention) was adopted in the framework of the Council of Europe in 1959, coming into

force in 1962. It was the first multilateral treaty on mutual assistance in criminal matters, not only

in Europe, but in the world.76 Before the Convention was adopted, measures of mutual assistance

were not the subject of a “comprehensive and coherent legal arrangement”77, but were to be

found only sporadically in some national provisions on mutual legal assistance or in bilateral

extradition treaties or in multilateral conventions on the punishment of special offences

traditionally being of an international character.78 Pursuant to such a legal situation, before the

Convention was adopted there was no general obligation of states recognized to grant each other

mutual assistance in criminal matters. Rather, the granting of mutual assistance was primarily

considered to be a question of international comity and courtesy79. Mutual assistance developed

as a legally unregulated practice between states known as “letters rogatory”. This is why one of

the main objectives of the Convention drafters was “the recognition by the European countries of

a general obligation to render each other assistance in criminal matters”80.

However, the drafters of the CoE-MLA-1959 were aware of the fact that the Council of Europe

gathers states that inherit different legal traditions and whose legal traditions, and especially

criminal justice systems, show a lot of differences. They were aware of the fact that if they wish

the Convention to be widely accepted its provisions needed to be drafted broadly and with

enough flexibility in order to be acceptable to countries with different legal traditions and 75 Council of Europe Treaty Series – No. 30. 76 McClean, David, International Cooperation in Civil and Criminal Matters, Oxford University Press, 2012, p. 171. 77 Franck, Pierre, The travaux préparatoires of the European convention on mutual assistance in criminal matters, in

European Committee on Crime Problems, Problems arising from the practical application of the European

convention on mutual assistance in criminal matters, Council of Europe, Strasbourg, 1971, p. 10. 78 Franck, 1971, 10. 79 Bassiouni, 2008a, 8, Dussaix, Roger, Some problems arising from the practical application, from the judicial point

of view, of the European Convention on mutual assistance in criminal matters, in European Committee on Crime

Problems, Problems arising from the practical application of the European convention on mutual assistance in

criminal matters, Council of Europe, Strasbourg, 1971, p. 37-38. 80 Franck, 1971, 10.

26

systems.81 This was even more so in a case with mutual legal assistance than with extradition,

which can be clearly seen in the example of the United Kingdom. Namely, despite the recognized

differences between the criminal justice systems of European states which belong either to civil

law or to common law tradition, the United Kingdom did participate in the drafting of the

European Convention on Extradition. However, it did not participate in the drafting of the

ECMA, because “the British authorities considered that it would be highly difficult if not

impossible for them legally and practically to apply a convention necessarily more adapted to

continental legislations than to their own legal system”.82 Despite this, the United Kingdom did

become a party of the ECMA, but only in 1990.83

The adoption of the ECMA was closely connected with the adoption of another Council of

Europe treaty in the area of international cooperation in criminal matters, the European

Convention on Extradition84. After the European Convention on Extradition had already been

drafted, the mandate of the Committee of Governmental Experts which drafted it broadened it in

order to prepare a draft Convention on Mutual Assistance in Criminal Matters.85 Although the

provisions of ECMA were, to a certain extent, inspired by the provisions of the European

Convention on Extradition, this does not mean that principles guiding extradition were simply

transferred to the area of mutual assistance in criminal matters. On the contrary, one of the

guiding principles of the ECMA is that mutual assistance should be independent of extradition,

“in that it should be granted even in cases where extradition was refused.”86 This independence is

seen, for example, in the fact that double criminality, which is a necessary precondition for

extradition,87does not have the same effects recognized in the ECMA – in order to grant mutual

assistance, the underlying offence does not have to be punishable both in the requesting and the

requested state.88

81 McClean, 2012, 171. 82 Franck, 1971, 11. 83 McClean, 2012, 171. 84 Council of Europe Treaty Series – No. 24. 85Explanatory Report to the European Convention on Mutual Assistance in Criminal Matters, Introduction,

McClean, 2012, 170. 86Explanatory Report to the European Convention on Mutual Assistance in Criminal Matters, General

considerations. 87 Article 2, paragraph 1 of the European Convention on Extradition. 88Explanatory Report to the European Convention on Mutual Assistance in Criminal Matters, General

considerations, Dussaix, 1971, 38.

27

The goal of the Convention was to simplify and intensify mutual legal assistance between

European states, but also to harmonize their laws in the area of mutual legal assistance. However,

the Convention reached its harmonizing goals only partially.89 Nevertheless, with the

Convention, the first step was taken in order to harmonize the laws of European countries in the

area of mutual assistance in criminal matters.90

The ECMA has influenced the development of similar instruments in other geographical and

political surroundings.91 After its adoption, similar legal arrangements were adopted for the

Commonwealth countries (The Commonwealth Scheme for Mutual Assistance in Criminal

Matters), the UN (The UN Model Treaty on Mutual Assistance in Criminal Matters) and the

Organization of American States (The Inter-American Convention on Mutual Assistance in

Criminal Matters).92

Today, the ECMA is still the essential legal instrument for mutual legal assistance in the

European context.93 It is also considered as one of the most successful Council of Europe

agreements.94 It does not only regulate the cooperation between EU Member States, but also the

cooperation with other European states and other states of the world that are not members of the

EU.95 It has fifty contracting parties, among which all states are members of the Council of

Europe and three non-member states (Chile, Israel and Korea).96 All EU Member States are also

contracting parties to this Convention.

89 Ditscher, Christine, Europäische Beweise, Der Rahmenbeschluss über die Europäische Beweisanordnung zur

Erlangung von Sachen, Schriftstücken und Daten zur Verwendung in Strafsachen, Peter Lang, Frankfurt am Main,

2012, p. 97-100. 90 Ditscher, 2012, 97-100. 91 McClean, 2012, 170. 92 More on these legal arrangements see McClean, 2012, 177-190. 93 Ditscher, 2012, 97. 94 McClean, 2012, 171. 95 Ditscher, 2012, 98. 96 For a full list of contracting parties, see the Chart of signatures and ratifications at

http://www.conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=030&CM=8&DF=16/12/2013&CL=ENG

(16 December 2013).

http://www.conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=030&CM=8&DF=16/12/2013&CL=ENG

28

2. Convention Implementing the Schengen Agreement (CISA)

The European Union today functions as an area with no internal borders, the so-called Schengen

Area. The creation of the Schengen Area is considered by the European Commission to be “one

of the greatest achievements of the EU”97.

The development of the European Union as an area with no internal border controls began in

1985 when five European Union Member States (Germany, France and the Benelux countries)

signed an agreement on the gradual abolition of checks at their common borders.98 This

agreement was superseded by the Convention Implementing the Schengen Agreement99 which

was signed between the same countries in 1990. Both the Agreement and the Convention were

signed outside the European Union legal framework, but were later entered into force by the

Amsterdam Treaty and integrated into the legal order of the European Union.100 The Schengen

Area today consists of 26 countries, among which 23 are Member States of the European Union.

European Union Member States which remain outside of Schengen are the United Kingdom,

Ireland, Bulgaria, Romania and Croatia. The latter three are in obligation to become parties to the

Schengen Area, while the United Kingdom and Ireland are not obligated to do so. Norway,

Iceland and Switzerland are non-Member States which are a part of the Schengen Community.

With the accession of other European Union Member States to the Schengen Area, the European

Union was transferred into an area with no internal borders. This was seen as a necessary step in

the development of a single market, as it enabled the free circulation of goods and persons within

the territory of the European Union. However, on the other hand, it created problems for law

enforcement by offering new opportunities for criminals operating on a transnational level. To

tackle these problems, provisions on police and judicial cooperation in criminal matters were also

incorporated into the Schengen agreements. Thus, Schengen agreements clearly show how the

97 See European Commission website, at the following link:

http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/borders-and-visas/index_en.htm (15 January 2014) 98 Agreement between the Governments of the States of the Benelux Economic Union, the Federal Republic of

Germany and the French Republic on the Gradual Abolition of Checks at their Common Borders, OJ L 239, 22. 9.

2000, p. 13. 99 Convention Implementing the Agreement of 14 June 1985 between the Governments of the States of the Benelux

Economic Union, the Federal Republic of Germany and the French Republic on the Gradual Abolition of Checks at

their Common Borders, OJ L 239. 22. 9. 2000, p. 19. 100 Protocol no. 2 to the Treaty of Amsterdam.

http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/borders-and-visas/index_en.htm

29

development of the single market gave an incentive for improvements in the area of police and

judicial cooperation in criminal matters.101

Provisions on police cooperation in the Schengen Implementing Convention can be considered

very innovative because they regulate forms of police cooperation that have never been regulated

in an international agreement before.102 These are the provisions that relate to cross-border

surveillance103 and hot-pursuit,104 which enable police officers of one state to undertake official

actions on the territory of another state. The provisions on mutual assistance in criminal matters

are situated in Title III, Chapter 2 of the Schengen Implementing Convention. These rules are

based on the same basic principles that the European Convention on Mutual Assistance in

Criminal Matters is based on. The purpose of these provisions is to supplement the provisions of

the European Convention on Mutual Assistance in Criminal Matters and to facilitate its

implementation.105 Even though their intention is to make mutual assistance between the

contracting states more effective, they cannot be considered as innovative as the rules on police

cooperation in criminal matters.

3. European Union Convention on Mutual Assistance in Criminal Matters (EU-MLA-2000)

The Convention on Mutual Assistance in Criminal Matters between the Member States of the

European Union (EU-MLA-2000)106, which was adopted by a Council Act of 29 May 2000, is

the first convention that has been adopted in the area of judicial cooperation in criminal matters

after the entry into force of the Amsterdam Treaty. Therefore, it represents the first step taken in

the accomplishment of an area of freedom, security and justice, which has been proclaimed as

one of the Union’s objectives in the Amsterdam treaty.107 Pursuant to Article 27, paragraph 3, it

entered into force on the 23rd of August 2005 after it had been ratified by eight Member States.

101 Ligeti, 2005, 56. 102 Ligeti, 2005, 56. 103 Article 40 CISA. 104 Article 41 CISA. 105 Article 48, paragraph 1 CISA. 106 Council Act of 29 May 2000 establishing in accordance with Article 34 of the Treaty on European Union the

Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, OJ C 197,

12. 7. 2000, p. 1. 107 Wasmeier, Martin, Entwicklung des Rechtshilferechts in der EU, in Sieber et al. (Eds.), Europäisches Strafrecht,

Nomos Verlagsgesellschaft, Baden-Baden, 2011, p. 509.

30

The Convention is a European Union law instrument and as such applies to the relations between

the European Union Member States. It also applies to some non-Member States (Norway,

Iceland). This is because its provisions supplement or replace the provisions of the Schengen

Implementing Convention, which also applies to those non-Member States.

This Convention presents a further step in the development of mutual legal assistance in the

European Union context.108 Provisions of the Convention can be divided into two groups: the

provisions which supplement the existing provisions on mutual assistance in criminal matters and

the provisions which do not build upon the existing provisions, but present a novelty in the area

of mutual legal assistance. The Convention does not replace the existing instruments in the area

of mutual legal assistance – European Convention on Mutual Assistance in Criminal Matters and

Schengen Implementing Convention - but only supplements their provisions with the aim to

“improve judicial cooperation by developing and modernising the existing provisions governing

mutual assistance, mainly by extending the range of circumstances in which mutual assistance

may be requested and by facilitating assistance, through a whole series of measures, so that it is

quicker, more flexible and, as a result, more effective.”109 However, the Convention does not

only supplement the provisions of the existing instruments, it also introduces new provisions,

which are a consequence of political, social and technological developments. Political and social

developments are reflected in the abolition of checks between the borders of most Member

States. These changes are used as an incentive for the provisions of Article 12 to 16 of the

Convention. Technological changes are related to the development of new technologies which

can be used in mutual legal assistance – provisions of article 10, 11 and 17 to 22 are inspired by

these changes.110

Protocol to the EU Convention on Mutual Assistance in Criminal Matters of the 16th of October

2001111 has been adopted in order to establish additional measures in the field of mutual

108 Hecker, Bernd, Europäisches Strafrecht, Springer, 2012, p. 404. 109 Explanatory Report to the Convention of 29 May 2000 on Mutual Assistance in Criminal Matters between the

Member States of the European Union, OJ C 379, 29. 12. 2000, p. 8. 110 Explanatory Report to the Convention of 29 May 2000 on Mutual Assistance in Criminal Matters between the

Member States of the European Union, OJ C 379, 29. 12. 2000, p. 8. 111 Council Act of 16 October 2001 establishing, in accordance with Article 34 of the Treaty on European Union, the

Protocol to the Convention on Mutual Assistance in Criminal Matters between the Member States of the European

Union, OJ C 326, 21. 11. 2001, p. 1.

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assistance in criminal matters for the purpose of effectively fighting organized crime, money

laundering and financial crime. Its adoption was inspired by the Conclusions adopted at the

European Council that was held in Tampere on the 15th and 16th of October 1999, and that it was

exclusively devoted to the elaboration of measures in order to achieve an area of freedom,

security and justice. The main characteristics of the Protocol are that it narrows the possibility to

refuse cooperation in the case of fiscal and political offences, regulates assistance relating to bank

accounts and includes the Eurojust into criminal law cooperation at the European Union level.112

II. ANALYSIS OF MUTUAL LEGAL ASSISTANCE INSTRUMENTS IN THE AREA OF

CROSS-BORDER EVIDENCE GATHERING

In the following part of the work, provisions of mutual legal assistance instruments which relate

to cross-border gathering of evidence shall be analyzed. Previously presented mutual legal

assistance instruments do not contain only rules which relate to cross-border gathering of

evidence. They also contain rules which regulate other forms of mutual legal assistance, such as

service of documents or communication of information from judicial records. However, the latter

rules are not the object of analysis undertaken here.

In analyzing mutual legal assistance instruments, only the general scheme for the cross-border

gathering of evidence shall be analysed. Specific forms of cooperation, which are governed by

specific rules, such as a hearing by video conference, interception of telecommunications, or joint

investigation teams, are not the object of analysis.

The provisions on the cross-border gathering of evidence shall be analyzed from three different

perspectives: the position of the requesting State, the position of the requested State, and the

position of the individual concerned.

112 Hecker, 2012, 404.

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1. Position of the requesting State

The requesting State is the State which requests assistance from another State. It is the State in

which judicial proceedings are taking place in relation to a criminal matter and the successful

course of those proceedings is dependent on the assistance of another State. A piece of evidence

which is needed for the criminal procedure of that State is situated on the territory of another

State. Since that State cannot independently gather evidence on the territory of another State, it

requests the other State – the requested State - to provide it with assistance, namely, to undertake

the evidence gathering action on its territory in the interest of the requesting State. The results of

the evidence gathering action – the evidence collected – shall be used in the criminal procedure

of the requesting State. The fact that the requesting State only requests another State to undertake

evidence gathering action on its territory, and does not order the undertaking of the evidence

gathering action on the territory of the requested State, dominantly determines its position in

cooperation.

In order to properly evaluate the position of the requesting State in the mutual legal assistance

scheme, interests which the requesting State has when requesting cooperation from another State

in the area of evidence have to be determined. The requesting State has an interest to successfully

gather the evidence which is situated on the territory of another State. That interest primarily

includes the possibility for the requesting State to request assistance from another State. This

possibility is dependent on the scope of procedures in relation to which assistance may be

requested and the scope of evidence gathering actions that may be the object of assistance. Next

to the possibility to request assistance from another State, the requesting State also has an interest

in being certain that its request for assistance shall be granted and the evidence gathering action

requested is undertaken on the territory of the requested State. Besides an interest in successfully

gathering the evidence abroad, the requesting State has also got an interest in being able to use

the evidence gathered abroad in domestic proceedings in relation to which a request for

assistance was issued. The extent to which these interests of the requesting State are observed in

mutual legal assistance instruments shall be analyzed.

33

In order to be able to answer these questions, provisions of MLA instruments which relate to the

position of the requesting State shall be divided into the following categories: i) procedures in

relation to which assistance may be requested, ii) evidence gathering actions that may be the

object of assistance, iii) authorities competent to issue a request for assistance, iv) conditions for

issuing a request for assistance, v) transmission of the request for assistance, and vi ) the way in

which the request for assistance is executed.

1. 1. Procedures in relation to which assistance may be requested

The need for the cross-border gathering of evidence, as well as other forms of mutual legal

assistance, is always connected with a certain procedure that is taking place in the requesting

State. The question which is analyzed here is: from what kind of procedure, in the requesting

State, can a request for the cross-border gathering of evidence emanate? Is it only procedures in

relation to criminal offences, or procedures in relation to other offences, for example, under

administrative penal law, which come into the scope of application of mutual legal assistance

instruments? Is it only procedures before judicial authorities or requests for cross-border evidence

gathering that can also emanate from proceedings undertaken before administrative authorities?

Pursuant to CoE-MLA-1959, request for mutual assistance can be made in relation to

“proceedings in respect of offences the punishment of which, at the time of the request for

assistance, falls within the jurisdiction of the judicial authorities of the requesting Party”.113 This

provision sets two criteria for the proceedings in the requesting State to come into the scope of

application of the Convention. First is that the proceedings needs to relate to an offence, and the

second is that the proceedings must be undertaken before the judicial authorities of the requesting

State.

The notion “offence” relates primarily to a criminal offence. It is important to notice that CoE-

MLA-1959 does not make cooperation dependent on the gravity of the offence. It relates equally

to proceedings for all criminal offences, including minor ones, under the law of the requesting

113 Article 1 (1) CoE-MLA-1959.

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state.114 However, from the text of CoE-MLA-1959, it remains unclear whether the notion

“offence” also relates to offences under administrative penal law. These are offences under

administrative law, which are dealt with in proceedings before the administrative authorities, with

the accused person having the right to appeal to an ordinary court. Pursuant to the Explanatory

Report CoE-MLA-1959, the notion “offence” needs to be interpreted in a broad sense, so to also

include Ordnungswidrigkeiten under German law.115 In the German criminal legal order,

Ordnungswidrigkeiten are offences under administrative penal law. With the CISA, proceedings

relating to offences under administrative penal law were explicitly included within the scope of

application of the mutual legal assistance instruments.116 This provision was later overtaken in

the EU-MLA-2000117 and in the Second Additional Protocol to CoE-MLA-1959118.

Since the first part of the proceedings in relation to an offence under administrative penal law is

undertaken before an administrative authority, and the second part, if the accused person appeals

the decision of the administrative authority, is undertaken before an ordinary court, the question

remains whether mutual assistance can be requested both in the administrative and in the judicial

phase of the proceedings or it can only be requested in the judicial phase of the proceedings. The

above cited provision of the CoE-MLA-1959 clearly excludes proceedings before administrative

authorities from its scope of application. “The Convention only applies to judicial proceedings as

opposed to administrative proceedings.”119 In relation to proceedings for offences under

administrative penal law, this means that a request for assistance can only be made in the judicial,

and not in the administrative phase of the proceedings. However, subsequent instruments have

broadened the scope of application, so that it also includes part of the proceedings before the

administrative authorities. This was first done in the CISA,120 and was later overtaken in the EU-

MLA-2000121 and the Second Additional Protocol to CoE-MLA-1959.122

114 Explanatory Report CoE-MLA-1959, Commentaries on the Articles of the Convention, Article 1. 115 Explanatory Report CoE-MLA-1959, Commentaries on the Articles of the Convention, Article 1. 116 Article 49 (a) CISA. 117 Article 3 (1) EU-MLA-2000. 118 Article 1 (3) of the Second Additional Protocol to CoE-MLA-1959. 119 Explanatory Report CoE-MLA-1959, Commentaries on the Articles of the Convention, Article 1. 120 Article 49 (a) CISA. 121 Article 3 (1) EU-MLA-2000. 122 Article 1 (3) Second Additional Protocol to CoE-MLA-1959.

35

Such a broad scope in the application of the mutual legal assistance instruments, which includes

proceedings before the administrative authorities in relation to offences under administrative

penal law, was urged by the fact that certain European states have decided to de-criminalize

certain behaviours and to categorize them as offences under administrative penal law.123

However, mutual legal assistance instruments are applicable not only in criminal proceedings and

in (administrative and judicial) proceedings for offences under administrative penal law. They are

also applicable in various proceedings that are not criminal, but are connected with criminal

procedure. Mutual assistance can also be requested in the proceedings for the enforcement of

sentences and similar measures,124 in proceedings for compensation in respect of unjustified

prosecution or conviction, and in civil proceedings joined to criminal proceedings.125 Criminal

and administrative proceedings which relate to offences or infringements, for which a legal

person may be held liable, in the requesting Member State, also come within the scope of

application of the mutual legal assistance instruments.126 Obligation to afford assistance in

relation to criminal or administrative proceedings against a legal person exists on the part of the

requested State notwithstanding the fact that the requested State does not recognize the concept

of criminal or administrative liability of legal persons.127 This provision is in compliance with the

criminal policy of the European Union that has always strongly pushed for the establishment of

the criminal responsibility of legal persons.128

1. 2. Evidence gathering actions that may be requested

With the CoE-MLA-1959, the Contracting Parties have undertaken the obligation to afford each

other “the widest measure of mutual assistance.”129 When it comes to evidence gathering actions

that can be requested, this provision is of significant importance. It means that not only evidence

gathering actions that are explicitly regulated in CoE-MLA-1959 can be the object of the request

123 Ligeti, 2005, 140. 124 Article 3 Additional Protocol to CoE-MLA-1959. 125 Article 49 (b)-(d) CISA. 126 Article 3 (2) EU-MLA-2000. 127 Explanatory Report EU-MLA-2000, p. 10. 128 Ligeti, 2005, 143. 129 Article 1 (1) CoE-MLA-1959.

36

issued by the requesting State (search and seizure of property, interrogation of persons), but all

other evidence gathering actions.130 This flexibility enabled the text of CoE-MLA-1959 to be

adapted to technological developments, in order to include into its scope of application those

evidence gathering actions that were not in existence at the time of its adoption, for example,

interception of telecommunications.131

This principle of flexible cooperation regarding the scope of evidence gathering actions that can

be requested remained applicable in all subsequent mutual legal assistance instruments. However,

these instruments specifically regulated some individual evidence gathering actions, which

required specific rules in the area of cross-border cooperation. Some of these actions were

previously considered to be a part of police cooperation, but were later included into mutual legal

assistance instruments, like cross-border observation.132 Some emerged with the development of

new technologies and its use in criminal procedure, like video-telephone conferences133 and the

interception of telecommunications.134 Some new concepts will be presented showing

cooperation in criminal matters, such as joint investigation teams.135

1. 3. Authorities competent to issue a request for assistance

Requests for assistance are addressed to the requested State by the judicial authorities of the

requesting State.136 This means that the judicial authorities of the requesting State are competent

to issue a request for assistance. However, mutual legal assistance instruments do not give a

definition of judicial authorities. What is to be understood under the notion of judicial authorities

is determined by the Contracting Parties. Mutual legal assistance instruments normally contain a

130 Ligeti, 2005, 148-149, McClean, 2012, 172, Vermeulen, G. et al., EU cross-border gathering and use of evidence

in criminal matters, Towards mutual recognition of investigative measures and free movement of evidence?, Maklu,

Antwerpen-Apeldoorn-Portland, 2010, p. 17-18. 131 Recommendation No. R (85) 10 of the Committee of Ministers to Member States Concerning the Practical

Application of the European Convention on Mutual Assistance in Criminal Matters in respect of Letters Rogatory for

the Interception of Telecommunications, 28 June 1985. 132 First international agreement that regulated this measure was CISA. In there, it was regulated as part of police

cooperation, in Article 40. This provision of CISA was, with certain amendments, overtaken into Article 17 of the

Second Additional Protocol to CoE-MLA-1959. 133 Article 10 and 11 EU-MLA-2000. 134 Articles 17-22 EU-MLA-2000. 135 Article 13 EU-MLA-2000. 136 Article 3 (1) CoE-MLA-1959.

37

provision which obliges the Contracting Parties to define, in a declaration, what authorities it

will, for the purpose of the respective instrument, deem judicial authorities.137 Contracting Parties

are in no way limited by the provisions of the respective instruments in defining which authorities

shall be considered competent to issue a request for assistance. If one analyses the declarations

given in relation to the CoE-MLA-1959, it can be seen that next to judicial authorities stricto

sensu – courts, judges and public prosecutors – different Contracting Parties also include their

executive authorities (Ministries) and police authorities into the notion of judicial authorities.138

With the inclusion of proceedings before administrative authorities into the scope of application

of mutual legal assistance instruments, the administrative authorities also became competent to

issue a request for assistance.

The fact that these authorities are competent to issue a request for assistance does not necessarily

mean that the request is transmitted directly from these authorities to the authorities of the

requested State which are competent to act upon it. Namely, requests for assistance are normally

directed through the Ministries of justice of the cooperating States. However, this question shall

be analyzed further on, when the transmission of a request for assistance shall be discussed.

1. 4. Conditions for issuing a request for assistance

As previously stated, requests for assistance are issued in relation to domestic proceedings of the

requesting State. The requesting State asks the requested State to undertake an evidence gathering

action on the territory of the requested State in order to gather the evidence which will be used in

the criminal procedure of the requesting State. By using a request for assistance, the requesting

State broadens its possibility to gather evidence. The question which arises in relation to this is:

to what extent is the requesting State, when sending a request for assistance to undertake a certain

evidence gathering action, limited by the provisions of its own law which determine the

137 Article 24 CoE-MLA-1959, Article 24 EU-MLA-2000. 138 For a full list of declarations made with respect to CoE-MLA-1959, see the following web page:

http://conventions.coe.int/Treaty/Commun/ListeDeclarations.asp?NT=030&CM=&DF=&CL=ENG&VL=1

(15 August 2014).


38

conditions under which that evidence gathering action can be undertaken in a similar domestic

case?

Why is the answer to this question important? The undertaking of evidence gathering actions is

strictly limited by national criminal procedural rules. These rules determine the conditions which

have to be fulfilled in order to undertake a certain evidence gathering action. The purpose of

these rules is to draw a line between the interests of the effective prosecution of crime and the

interests of safeguarding fundamental rights of individuals affected by the evidence gathering

action. Conditions which have to be fulfilled in order to undertake an evidence gathering action,

which represents an interference of the State into fundamental rights of an individual, normally

refer to a level of suspicion that a certain criminal offence has been committed and the

probability that evidence looked for will be found at a certain place. In relation to certain, highly

intrusive evidence gathering actions, they also refer to a group of criminal offences under

investigation of which that action may be undertaken. Criminal procedural rules of Member

States differ significantly in this regard. The problem which is encountered in cross-border

evidence gathering is that fundamental rights standards of the requested State may be lower than

the fundamental rights standards of the requesting State, in which case the requesting State will

have the opportunity to gather evidence which would normally not be obtainable in a similar

domestic case. This is problematic from the point of view of the suspect in the criminal

proceedings of the requesting State, who might face evidence which would normally not be

obtained if the case did not involve a transnational dimension. However, it is also problematic

from the point of view of the admissibility of evidence, since the admissibility of evidence at trial

depends on the way in which the evidence was gathered. The possibility for the requesting State

to make use of lower fundamental rights guarantees in the requested State in order to obtain the

evidence which would not be available in a similar domestic case is known as forum-shopping.

Mutual legal assistance instruments do not seem to take account of this. They do not provide an

obligation for the requesting State to assess whether the evidence gathering action requested

would be available in a similar domestic case. Therefore, this question is left to the national

provisions of the requesting State and its judicial practice. For example, German law on

international cooperation in criminal matters does not contain such a provision. However, the

39

prevailing opinion of the commentators considers the availability of the evidence gathering

measure under German law as a precondition for the issuing of a request for assistance to

undertake the same measure in the territory of the requested State.139

1. 5. Transmission of the request for assistance

After a request for assistance has been issued by the competent judicial authority of the

requesting State, it needs to be transmitted to the requested State. When it comes to transmitting

requests for mutual legal assistance, three possibilities come under consideration: communication

through diplomatic channels, communication through central authorities of respective States, and

direct communication between competent judicial authorities of the respective States.

Before the CoE-MLA-1959 was adopted, communication through diplomatic channels was a

common way of transferring requests for mutual assistance. This way of communication was

extremely formal and cumbersome while being unable to meet the needs of effective international

cooperation in criminal matters.140 CoE-MLA-1959 inaugurated communication between the

Ministries of justice of the respective States as a common way of transferring requests for mutual

assistance.141 This way of communication was to be applied in both directions of communication:

from the requesting to the requested State, and back from the requested to the requesting State,

after the request for mutual assistance has been (successfully) fulfilled. Direct communication

between the competent judicial authorities was allowed only as an exception in case of urgency.

Even when this way of communication was allowed, it could only be used by the judicial

authority of the requesting State. The results of the undertaken measure must have been sent from

the Ministry of justice of the requested State to the Ministry of justice of the requesting State,

although the request for assistance was directly communicated from the competent judicial

139 Mavany, 2012, 106. 140 Gully-Hart, Paul, Loss of Time through Formal and Procedural Requirements in International Co-operation, in

Eser, Albin, Lagodny, Otto, (Eds.), Principles and Procedures for a New Transnational Criminal Law, Society for

the Reform of Criminal Law and Max Planck Institute for Foreign and International Criminal Law, Freiburg im

Breisgau, 1992, p. 252. 141 Article 15 (1) CoE-MLA-1959.

40

authority of the requesting State to the competent judicial authority of the requested State.142

Communication between the Ministries of justice of the respective States points to the

international law character of mutual assistance in criminal matters. It emphasizes the political

character of international cooperation in criminal matters, presenting it as a relationship between

sovereign States, rather than their competent judicial authorities.

CISA introduced communication between competent judicial authorities as a primary way of

communicating requests for mutual assistance, but did not exclude the possibility of requests

being sent and returned between the Ministries of Justice.143 Direct communication between

competent judicial authorities, inaugurated by CISA, was overtaken in the EU-MLA-2000.144

This Convention also does not exclude the possibility for requests for assistance to be sent and

returned between central authorities of the respective States. However, this possibility is reserved

only for specific cases.145 The notion “specific cases” relates, for example, to the following

situations: complex cases or cases where the request is addressed to more than one competent

authority in the requested Member State.146 With the Second Additional Protocol to CoE-MLA-

1959, there arose the opportunity for direct communication between competent judicial

authorities, which was also introduced into the Council of Europe normative framework.

However, this was not as a primary way of communication, but as an equivalent way to

communicate between the Ministries of justice of respective States.147

Direct communication between the competent judicial authorities enables mutual legal assistance

proceedings to run more speedily, because it reduces two-level communication in each

cooperating state (Ministry of justice – competent judicial authority), to one-level communication

(only competent judicial authorities). The acceleration of the mutual legal assistance procedure

serves not only the interests of cooperating states, by raising the efficiency of cooperation; but it

also serves the interest of the individual concerned. Speedy and efficient cooperation in cross-

142 Article 15 (2) CoE-MLA-1959. 143 Article 53 (1) and (2) CISA. 144 Article 6 (1) EU-MLA-2000. 145 Article 6 (2) EU-MLA-2000. 146 Explanatory Report EU-MLA-2000, p. 13. 147 Article 4 (1) of the Second Additional Protocol to CoE-MLA-1959.

41

border evidence gathering enables the individual to have his right to trial within a reasonable time

respected.148

Direct communication between competent judicial authorities is not only affecting the speed and

efficiency of mutual legal assistance. It also represents a sign of a shift in perception in the nature

of mutual legal assistance proceedings. Communication through diplomatic channels or through

the Ministries of justice of respective States indicated the political character of mutual legal

assistance. The introduction of direct communication between competent judicial authorities

diminished the possibility for political considerations to be included into the assessment of a

mutual legal assistance request, and therefore indicated the shift in the perception of mutual legal

assistance from a political to a legal issue.

Besides direct communication between competent judicial authorities, other ways exist to raise

the efficiency of cross-border evidence gathering. One of them is the prescription of clear

deadlines to execute the request for mutual assistance, and making it an obligation for the

requested state to respect these deadlines. This will be the subject of the analysis further on in the

text [see infra II. 2. 1. 6. d)].

1. 6. The way in which request for assistance is executed

All the previous issues analyzed refer to the position of the requesting State at its side of the

border. However, the requesting State also has an interest in the way in which the evidence

gathering action requested is going to be undertaken on the territory of the requested State. After

all, the evidence collected in the requested State will be used in the domestic procedure of the

requesting State. The following issues which relate to the way in which the evidence gathering

action requested is going to be undertaken are of special interest to the requesting State: a)

decision on the evidence gathering action to be undertaken, b) law which regulates the gathering

of evidence, c) officials which undertake the action, and d) time-limits for the execution of the

request for assistance.

148 Ligeti, 2005, 149.

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1. 6. 1. Decision on the evidence gathering action to be undertaken

The procedures relating to the gathering of evidence, on one side, and its use at the trial, on the

other side, are inextricably connected. The opportunity to use the evidence at trial, admissibility

of evidence, is dependent on the way in which the evidence was gathered. This is why in the

context of the cross-border gathering of evidence, the question of who decides about the type of

evidence gathering action, the requesting or the requested State, which will be undertaken on the

territory of the requested State, is an important one. Two options are possible: the requesting

State decides about the goal to be achieved, which is about a piece of evidence that is to be

collected on the territory of the requested State, but the requested State decides about the

evidence gathering action that is going to be undertaken in order to achieve the objective

indicated by the requesting State, or the requesting State decides about the type of evidence

gathering action that is to be undertaken on the territory of the requested State and the requested

State is bound by the decision of the requesting State. From the point of view of the requesting

State, the latter option is a better one, because it raises the probability that the evidence gathered

in the requested State will be admissible in the domestic procedure of the requesting State.

In the mutual legal assistance scheme, the requesting State decides on the type of evidence

gathering action that is to be undertaken on the territory of the requested State.149 This means that

the mutual legal assistance system is oriented not towards the goal to be achieved, but towards

the type of evidence gathering action which is to be undertaken in order to achieve the objective

of cooperation. As previously stated, this attitude serves the interests of the requesting State.

1. 6. 2. Law which regulates the gathering of evidence

Pursuant to Article 3 CoE-MLA-1959 the requested Party executes letters rogatory relating to a

criminal matter in the manner provided for by its law. This provision determines the application

of the principle locus regit actum. This principle determines that evidence gathering action

sought is executed pursuant to the law of the State in whose territory the action is undertaken –

the requested State. It is founded on the principle of state sovereignty, from which arises those

149 Vermeulen et al., 2010, 25.

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official actions undertaken on the territory of the state that needs to be taken following the rules

of that state. Besides its rooting in the principle of state sovereignty, the principle locus regit

actum can also be explained in practical reasons, officials of the requested State can only be

expected to undertake actions following the provisions of the legal order they are familiar with.150

However, application of this principle causes problems when it comes to the use of gathered

evidence in the criminal procedure of the requesting State. Namely, evidence is gathered

following the evidence gathering procedure of the requested State, but needs to be used in the

criminal procedure of the requesting State. Since criminal procedural rules of the requesting and

the requested State may differ significantly, the fact that a piece of evidence is gathered pursuant

to the law of the requested State may bring into question its admissibility in the criminal

procedure of the requesting State. Having in mind that evidence is gathered across the border

with the goal to be used in the criminal procedure of the requesting State, its doubtful

admissibility in the criminal procedure of the requesting State brings into question the very

purpose of cross-border evidence gathering.

One of the possible solutions is to make the law of the requesting, and not the requested State,

decisive for the evidence gathering procedure. This means that instead of the locus regit actum

principle, the forum regit actum principle applies.151 Pursuant to forum regit actum principle, the

law of the state which ordered an evidence gathering action applies, and not the law of the state in

whose territory the action is undertaken. This approach is taken in the provisions of the EU-

MLA-2000. It determines that the requested Member State shall comply with the formalities and

procedures expressly indicated by the requesting Member State provided that such formalities

and procedures are not contrary to the fundamental principles of law in the requested Member

State.152 The same provision was later overtaken in Article 8 of the Second Additional Protocol to

the CoE-MLA-1959. The scope of this provision remains unclear as to whether the procedure for

evidence gathering is determined by the law of the requesting State or by the law of the requested

State because the requested State needs to take into account formalities and procedures indicated

150 Ligeti, 2005, 146. 151 Gleß, 2006, 113-114. 152 Article 4(1) EU-MLA-2000.

44

by the requesting State. The latter option seems more convincing153 and in any case, the

application of the law of the requesting state in the territory of the requested state remains limited

by the observance of the fundamental principles of law in the requested Member State.

It can be concluded that the application of the forum regit actum principle can significantly help

to resolve the issues connected with the use of evidence gathered in the requested state in the

criminal procedure of the requesting state. However, its scope remains limited. First, the law of

the requested State still governs the execution of the request for assistance, but the requested

State needs to take into account formalities and procedures indicated by the requesting State.

Second, its use is limited by the observance of the fundamental principles of law of the requested

State. What also remains unclear is the substance of the fundamental principles of law in the

requested state.154

1. 6. 3. Officials which undertake the action

Pursuant to the principles of international law, only officials of the state can undertake evidence

gathering actions on the territory of that state. Normally, officials of a foreign state cannot

actively participate in the evidence gathering action that is undertaken on the territory of another

state. However, when it comes to evidence gathering, the presence and active participation of

officials of the requesting State can be very useful. Since evidence gathering action is undertaken

for the purpose of criminal procedure that is taking place in the requesting State, presence and

participation of the officials of that state can be useful for making the evidence gathering action

more adapted to the needs of the criminal procedure in the requesting State. Officials of the

requesting State have more knowledge of the case and can help to guide the evidence gathering

action so that it is undertaken in the right direction.155 Their presence and participation is needed

even more when the evidence gathering action is undertaken pursuant to the law of the requesting

State, following the forum regit actum principle, which was introduced as a rule for evidence

gathering in the European Union context with Article 4(1) of the EU-MLA-2000. However, it is

not only the presence and participation of the officials of the requesting State at the undertaking

153 Gleß, 2006, 114. 154 Gleß, 2006, 114. 155 Ligeti, 2005, 147-148.

45

of the evidence gathering action in the requested State that is useful and sometimes necessary, it

is also the presence and participation of other interested persons from the requesting State, for

example the defence counsel and the accused. These are all the reasons why it is necessary to

analyze, to what extent the mutual legal assistance instruments allow for presence and

participation of officials and other interested persons of the requesting State during the evidence

gathering action in the requested State.

CoE-MLA-1959 determines that officials and interested persons from the requesting Party may

be present at the execution of the letter rogatory in the requested Party only if the requested Party

consents. In order to enable them to be present, on the express request of the requesting Party, the

requested Party shall state the date and place of execution of letter rogatory.156 This provision

limits participation of officials and interested persons of the requesting Party at the undertaking

of the evidence gathering action in the requested Party in two ways. First, it only provides for

their presence, not for their active participation.157 Their participation can only be passive, which

means that they can only propose to the officials of the requested Party, who are undertaking the

action, to ask additional questions or to undertake additional measures.158 Second, it makes their

presence dependent on the consent of the requested Party. There is no obligation for the requested

Party to agree to their presence, this is only a possibility which the requested Party can accept or

decline.

CISA and the EU-MLA-2000 have brought in some changes in this respect, but only in relation

to specific evidence gathering actions. Pursuant to provisions of these instruments, officials of the

requesting State can be present, and even undertake certain official actions on the territory of the

requested State in relation to cross-border observations, hot pursuit, controlled deliveries, joint

investigation teams and covert investigations.159

156 Article 4 CoE-MLA-1959. 157 Dussaix, 1971, 43-44. 158 Ligeti, 2005, 147. 159 Article 40 and 41 CISA regulate cross-border observations and hot pursuit. Pursuant to these provisions, police

officials of the requesting State can extend observations and pursuit started at their territory to the territory of the

requested State. Article 12, 13, and 14 EU-MLA-2000 regulate cooperation in relation to controlled deliveries, joint

investigation teams, and covert investigations. Pursuant to the provisions on joint investigation teams, officials of a

foreign country can, not only be present, but also undertake investigative actions in the territory of another state, with

the permission of the leader of the team.

46

Changes in this area have been introduced with the provisions of the Second Additional Protocol

to CoE-MLA-1959. The aforementioned provision of the CeEMLA-1959 has been supplemented

with another paragraph which determines that requests for the presence of such officials or

interested persons should not be refused where that presence is likely to render the execution of

the request for assistance more responsive to the needs of the requesting Party and, therefore,

likely to avoid the need for supplementary requests for assistance.160 However, the effects of this

provision remain very limited. It only encourages the requested State to grant presence of

officials and other interested persons of the requesting State. It makes no obligation for the

requested State to do so, nor does it grant active participation rights for officials and interested

persons of the requesting State.161

1. 6. 4. Time-limits for the execution of the request for assistance

Speed and efficiency are critical for all forms of international cooperation in criminal matters.

Unnecessary delays in the execution of requests for assistance are detrimental, not only for the

course of justice, but also for the rights of the individual who has fallen under suspicion of having

committed a criminal offence.162 For criminal procedure that is taking place in the requesting

State, it may often be necessary for certain evidence gathering actions to be undertaken within a

certain time-frame. Not respecting the limits of this time-frame may prove detrimental to the

course of criminal procedure that is taking place in that state.

CoE-MLA-1959 does not recognize this need and does not provide either the possibility for the

requesting State to indicate that the request for assistance should be executed within a certain

time-frame, or the obligation for the requested State to execute the request for assistance with

necessary expediency. This has led to significant delays in the execution of requests for mutual

assistance.163

160 Article 2 of the Second Additional Protocol to CoE-MLA-1959. 161 Ligeti, 2005, 148. 162 Gully-Hart, 1992, 264. 163 Ligeti, 2005, 151.

47

Change in this area has been introduced with the EU-MLA-2000. This Convention stipulates a

general obligation for the requested Member State to execute the request for assistance “as soon

as possible”. Additionally, it obliges the requested Member State to take “as full account as

possible of the procedural deadlines and other deadlines indicated by the requesting Member

State”164.

Second Additional Protocol to the CeEMLA-1959 added, next to the obligation of contracting

Parties to afford each other the widest measure of mutual assistance, the adverb “promptly.”165

Thereby it did not “follow the EU Convention in requiring that deadlines indicated by the

requesting Party be met by the requested Party”, but nevertheless introduced “a requirement of

swiftness in responding to requests for mutual assistance”.166

2. Position of the requested State

The requested State is the State to which the request for assistance is directed. It is the State on

the territory of which a certain evidence gathering action needed for the criminal procedure of the

requesting State needs to be undertaken.

When providing assistance to another State, the requested State has an interest in having its

sovereign interests and fundamental legal concepts protected. In the mutual legal assistance

regime, which was developed with a strong respect for its inter-state character, States involved

are not expected to provide assistance to another State if it runs contrary to their essential

interests. On the other hand, legal regimes of cooperating States are different. From the point of

view of the requesting State, assistance should be provided, to the highest degree possible, in

accordance with the demands of its legal order. Since the demands of the legal order of the

requested State are different than those of the requesting State, the requested State has an interest,

in the conflict between the legal order of the requesting State and its legal order, to have its

fundamental legal concepts safeguarded.

164 Article 4 (2) EU-MLA-2000. 165 Article 1 (1) of the Second Additional Protocol to CoE-MLA-1959. 166 Explanatory Report to the Second Additional Protocol to the CoE-MLA-1959, § 18 and 15.

48

Mutual legal assistance instruments take account of the interests of the requested State in a

number of its provisions, but primarily through the provisions which determine the conditions

under which the requested State has the possibility to refuse to provide the assistance requested.

Grounds for refusal of cooperation in the mutual legal assistance regime shall be presented in the

following paragraphs.

By accepting an international agreement on mutual legal assistance, contracting States have

undertaken the obligation to afford each other mutual assistance in criminal matters. However,

this obligation has its limits as they are determined by the grounds for refusal of cooperation.

Grounds for refusal of cooperation in the CoE-MLA-1959 can be divided into two groups:

general grounds for refusal of cooperation, that relate to all mutual assistance mechanisms that

come into the scope of application of the Convention, and specific grounds for refusal of

cooperation, that relate only to search and seizure of property.

2. 1. General grounds for refusal of cooperation

All mechanisms of cooperation, including cross-border evidence gathering, can, pursuant to the

provisions of CoE-MLA-1959, be refused “if the request concerns an offence which the

requested State considers a political offence, an offence connected with a political offence, or a

fiscal offence”167, or “if the requested Party considers that execution of request is likely to

prejudice the sovereignty, security, ordre public or other essential interests of its country”168.

2. 1. 1. Political offence exception

Political offence169 exception is one of the traditional grounds for refusal of cooperation in the

law of international cooperation in criminal matters. It has been developed in extradition law,170

167 Article 2 (a) CoE-MLA-1959. 168 Article 2 (b) CoE-MLA-1959. 169 About the meaning of the notion „political offence and offence connected with a political offence“, see Krapac,

2006, 60-62, Gleß, 2011, 101-102.

49

from where it has been overtaken by the law of mutual legal assistance. Political offence

exception developed in extradition law during the course of the 19th century and it is rooted in the

ideas of national sovereignty which were characteristic for that period.171 These offences were

seen as acts which are detrimental to the interests of one State only, and therefore should be left

out of the scope of international cooperation in criminal matters. Besides the states’ egoism, the

introduction of the political offence exception had further reasoning: the perpetrator of a criminal

offence, because of the noble motifs of his act, was not to be equated with an ordinary offender,

and should therefore enjoy the protection of the State under whose jurisdiction he/she came.172

Despite its long existence in the law of international cooperation in criminal matters, there is no

common understanding of the term “political offence”.173 In modern law of international

cooperation in criminal matters, political offence exception lost a lot of its importance. This is

primarily due to the endeavour of the international community to efficiently fight terrorism. In

the instruments of mutual legal assistance, which are analyzed here, political offence exception

showed a lot of resistance. It was with Article 9(1) of the Protocol to EU-MLA-2000 that the

grounds for refusal became inapplicable in mutual legal assistance relations between Member

States. This provision determines that “for the purpose of mutual legal assistance between

Member States, no offence may be regarded by the requested Member State as a political offence,

an offence connected with a political offence or an offence inspired by political motives”.

Paragraph 2 of the same Article opens the possibility for Member States to derogate from that

principle. However, no derogation is allowed regarding terrorist offences defined therein. Due to

the establishment of a common foreign and security policy within the European Union, the

traditional perception pursuant to which political offences are detrimental only for the political

system of one state, could not have been retained.174

170 For a historical development of political offence exception in extradition law, see Van den Wijngaert, Christine,

The political offence exception to extradition, Kluwer, 1980, p. 4-18. 171 Schomburg et al., 2012, 6. 172 Krapac, 2006, 60. 173 Gleß, 2011, 101. On the interpretation of the term „political offence“ and the diferentitation between a „classical

political offence“ and a „offence connected with a political offence, see Krapac, 2006, 60-62. 174 Ligeti, 2005, 143-144.

50

2. 1. 2. Fiscal offences exception

Next to political offences, fiscal offences are another category of offences that have traditionally

been excluded from the scope of international cooperation in criminal matters. The reasons

behind this were basically the same ones as with political offences: these offences were seen as

ones that are detrimental to the interests of one state only, and therefore should be excluded from

the scope of international cooperation in criminal matters.175 Although recognizing them as

grounds for refusal, CoE-MLA-1959 did not give a definition of fiscal offences. However, their

definition is given in another Council of Europe criminal law cooperation instrument – European

Convention on Extradition, which defines them, in Article 5, as “offences in connection with

taxes, duties, customs and exchange”. The same shift in attitude which has previously been

described in relation to political offences also happened with fiscal offences. Gradually, they

were included into the scope of application of international criminal law cooperation instruments,

i. e. they were no longer recognized as grounds for refusal of cooperation. In the European Union

context, this change in attitude can be explained by two factors: first, the establishment of closer

economic cooperation of Member States and second, the recognition of the increasingly

transnational character of these offences.176 After CoE-MLA-1959 recognized fiscal offences as

one of the grounds for refusal of mutual legal assistance, it was the Protocol to CoE-MLA-1959

that included fiscal offences into the scope of mutual legal assistance, by not further recognizing

them as grounds for refusal of cooperation.177 Basically the same provision in relation to fiscal

offences was later overtaken by CISA178 and in the Protocol to the EU-MLA-2000179.

2. 1. 3. Sovereignty, security, ordre public and other essential interests of the requested State

Pursuant to CoE-MLA-1959, mutual legal assistance can be refused, not only in the case of

political and fiscal offences, but also “if the requested Party considers that execution of the

request is likely to prejudice the sovereignty, security, ordre public or other essential interests of

175 „Jeder Staat muss selbst für seine Einnahmen sorgen“, Gleß, 2011, 104. 176 Ligeti, 2005, 144-145. 177 Article 1 of the Additional Protocol to CoE-MLA-1959. 178 Article 50 CISA. 179 Article 8 of the Protocol to EU-MLA-2000.

51

its country.”180 Unlike the political and fiscal offence exception, which have, with subsequent

mutual legal assistance instruments, been removed from the mutual legal assistance scheme, this

general grounds for refusal is still applicable, both in the context of the Council of Europe and in

the European Union.

CoE-MLA-1959 shows, like all the other Council of Europe instruments in the area of judicial

cooperation in criminal matters, deep respect for state sovereignty and the national identity of

contracting states.181 When it comes to mutual legal assistance, which, like extradition, implies

some relinquishment of sovereignty by the requested State, in this respect it materializes in the

recognition that such relinquishment can only take place if the requested State considers it

compatible with its essential interests.182 Through recognition of the sovereignty, security and

other essential interests, this may also include the economic interests183 of the requested State as

grounds for refusal. Thus, mutual legal assistance instruments recognize the priority of the

national interests of the requested State in the mutual legal assistance scheme.184

The notion ordre public refers to basic principles of the legal order of the requested State.185

However, there is no agreement on what should be understood under this phrase.186 Its definition

represents one of the most controversial and most important questions of international

cooperation in criminal matters.187 Today, questions relating to the scope of the ordre public

exception and its place in international cooperation in criminal matters primarily refer to relations

between requested State´s obligation to guarantee constitutionally recognized human rights and

its obligation to fulfil its commitments arising from international criminal law cooperation

agreements.188 In order to resolve this tension, the requested State needs to take into account the

expected position of the individual concerned in the criminal justice system of the requesting

State. Following this path, various situations can come under the umbrella of the ordre public 180 Article 2(b) CoE-MLA-1959. 181 Plachta, Michael, Cooperation in Criminal Matters in Europe: Different Models and Approaches, in Bassiouni,

Cherif M., International Criminal Law, Multilateral and Bilateral Enforcement Mechanisms, Martinus Nijhoff

Publishers, Leiden, 2008, p. 456. 182 Franck, 1971, 15. 183 Explanatory Report to CoE-MLA-1959, Commentaries on the articles of the Convention, Article 2. 184 Gleß, 2011, 106-107. 185 Gleß, 2011, 108-109. 186 Ligeti, 2005, 145. 187 Schomburg, 2006, 335. 188 Krapac, 2006, 46-51.

52

exception: if the individual concerned is unlikely to have a fair trial in the requesting State, if

there is a danger that he/she will be exposed to the death penalty or that he/she will be prosecuted

for discriminatory reasons.189

Although these are the only general grounds for refusal of cooperation recognized by the CoE-

MLA-1959, many contracting States have used the possibility foreseen in Article 23 (1) CoE-

MLA-1959, which enables them to make a reservation in respect of any provision of the

Convention, to make additional general grounds for refusal. Out of 28 Member States of the

European Union, 15 have used this possibility, making one or more additional general grounds

for refusal of cooperation. 4 Member States have made double criminality a general requirement

for mutual legal assistance (Austria, Estonia, Hungary, and Lithuania). 12 Member States have

excluded mutual legal assistance in cases which the principle non bis in idem applies (Belgium,

Bulgaria, Cyprus, Denmark, Finland, Ireland, Lithuania, Luxembourg, Malta, Netherlands,

Sweden, and UK). 8 Member States have excluded mutual legal assistance in cases where there is

a criminal procedure already pending against the same person for the same acts (Belgium,

Bulgaria, Denmark, Finland, Ireland, Lithuania, Luxembourg, and Netherlands). Some Member

States have entered other specific additional general grounds for refusal of cooperation.190

2. 2. Specific grounds for refusal of cooperation

Besides general grounds for refusal of cooperation, CoE-MLA-1959 also recognizes specific

grounds for refusal of cooperation that relate only to the search and seizure of property. Pursuant

to Article 5 CoE-MLA-1959 any Contracting Party may reserve the right to make the execution

of letters rogatory for the search and seizure of property dependent on one or more of the

following conditions: (a) that the offence motivating the letters rogatory is punishable both under

the law of the requesting Party and the law of the requested Party, (b) that the offence motivating

the letters rogatory is an extraditable offence in the requested country, and (c) that execution of

letters rogatory is consistent with the law of the requested Party. “As the measures concerned

189 Gleß, 2011, 108-109. 190 For a full list of declarations and reservations made n respect of CoE-MLA-1959, visit the following web site:


(18 January 2014).


53

affect the inviolability of the domicile or of property they may be regarded as particularly serious

by certain States.”191 “Since these particular measures involve coercion and interfere with

individual rights and constitutional freedoms, no state can allow such methods to be used more

freely in the service of a foreign country’s criminal justice than in that of its own.”192 Only 4

Member States of the European Union (France, Greece, Italy, and Latvia) have not used this

possibility. All the others have made the execution of letters rogatory for search and seizure of

property dependent on one or more of the reasons enlisted in Article 5 CoE-MLA-1959.

CISA reduced the number of specific grounds for refusal of cooperation in relations between its

contracting parties. Only double criminality and consistency with the law of the requested

country remained possible additional refusal grounds. The nature of the underlying offence, being

an extraditable one, is no more recognized as specific grounds for the refusal of cooperation.193

2. 2. 1. Double criminality

Double criminality is one of the most prominent requirements for international cooperation in

criminal matters. It means that the requested State will only give assistance in cases where the

underlying offence is a crime both under the law of the requesting State as well as under the law

of the requested State.194 The function of the principle of double criminality is to limit serious

forms of cooperation to serious cases.195

191 Franck, 1971, 15. 192 Dussaix, 1971, 44. 193 Article 51 CISA:

„The Contracting Parties may not make the admissibility of letters rogatory for search or seizure dependent on

conditions other than the following:

(a) the act giving rise to the letters rogatory is punishable under the law of both Contracting Parties by a penalty

involving deprivation of liberty or a detention order of a maximum period of at least six months, or is punishable

under the law of one of the two Contracting Parties by an equivalent penalty and under the law of the other

Contracting Party by virtue of being an infringement of the rules of law which is being prosecuted by the

administrative authorities, and where the decision may give rise to proceedings before a court having jurisdiction in

particular in criminal matters;

(b) execution of the letters rogatory is consistent with the law of the requested Contracting Party.“ 194 Klip, 2012, 345. 195 About the double criminality requirement with more detail, see supra B. I. 5. 1.

54

In international cooperation in criminal matters double criminality requirements are primarily

connected to the law of extradition. CoE-MLA-1959 does not recognize it as a general

requirement for mutual legal assistance in criminal matters.196 In order to request mutual legal

assistance pursuant to the provisions of CoE-MLA-1959, it is enough that the underlying offence

is recognized as such in the law of the requesting State. There are two main reasons which

explain this, a legal one and a practical one. Legally, unlike extradition, not all requests for

mutual legal assistance present an interference of the state into the private life and other human

rights of the individual. Since there is no general demand for the restriction of human rights in

cases of mutual legal assistance, there is also no general double criminality requirement. From a

practical point of view, with mutual legal assistance requests it is difficult to evaluate from the

outset whether the result of the requested assistance shall be in the interest or to the detriment of

the accused. The result of a measure requested can go both in the interests of the accused or in the

interests of criminal prosecution.197 This is why in the area of mutual legal assistance the double

criminality requirement is generally limited to those requests for assistance which presuppose the

use of coercive measures by the requested State, i. e. which require interference by the requested

State into human rights and freedoms of an individual.

CoE-MLA-1959 accepts this approach and provides the possibility for contracting parties to

foresee double criminality as a requirement of cooperation when a case of search or seizure of

property is requested.198 This provision should not be seen as a provision which relates only to

the search and seizure of property, but also to other measures that require the interference of the

requested State into the private life and other fundamental rights of the individual affected by the

evidence gathering measure. Out of 28 Member States of the European Union, 20 have used this

possibility and have made a reservation making double criminality a requirement for mutual legal

assistance in cases that search and seizure of property is requested from them.199

196 Vermeulen et al., 2010, 21. However, four Member States have used the possibility foreseen in Article 23 (1)

CoE-MLA-1959 to introduce double criminality as a general requirement for mutual legal assistance my making a

reservation to the provisions of CoE-MLA-1959. The fact that this possibility was used only by four Member States

shows that double criminality was not widely accepted as a general requirement for mutual legal assistance in the

European Union context. 197 Ligeti, 2005, 141-142. 198 Article 5(a) CoE-MLA-1959. 199 16 Member States have made such a reservation in relation to Article 5(a) of the Convention, while 4 Member

States have made a reservation in relation to Article 2 of the Convention, making double criminality a general

55

Subsequent Council of Europe and European Union instruments which regulate mutual legal

assistance have not brought any changes into this area. This means that double criminality

represents an important requirement for cooperation between European Union Member States

when it comes to those requests for mutual legal assistance which require the interference of the

requested state into the rights and freedoms of an individual.

2. 2. 2. Extraditable offences

One of the guiding principles of CeEMLA-1959 was to make mutual legal assistance independent

of extradition. This means, among other things, that mutual legal assistance should also be

granted in cases where offences do not fall into the category of extraditable offences. Extraditable

offences are those for which extradition may be granted. Extradition treaties limit this form of

cooperation to offences that are serious enough in order to justify the use of such a complicated

and expensive means of cooperation.200 The European Convention on Extradition, for example,

defines extraditable offences as those which are punishable by deprivation of liberty or under a

detention order for a maximum period of at least one year or by a more severe penalty, or where a

conviction and prison sentence have occurred or a detention order has been made, the punishment

awarded must have been for a period of at least four months.201

CoE-MLA-1959 enabled contracting parties to limit mutual legal assistance in cases of requests

for search and seizure of property only to extraditable offences.202 8 Member States of the

European Union have used this possibility and have made such a reservation.203 However, Article

requirement for cooperation. For a full list of declarations, reservations and other communications in relation to the

CoE-MLA-1959, see the Council of Europe web page, at:

http://www.conventions.coe.int/Treaty/Commun/ListeDeclarations.asp?NT=030&CM=8&DF=03/02/2014&CL=EN

G&VL=1 (3 February 2014). 200 Krapac, 2006, 55. 201 Article 2(1) of the European Convention on Extradition. 202 Article 5(b) CoE-MLA-1959. 203 Belgium, Croatia, Lithuania, Luxembourg, Netherlands, Poland, Romania, and Spain. For a full list of

declarations, reservations and other communications in relation to the European Convention on Mutual Assistance in

Criminal Matters, see the Council of Europe web page, at:


G&VL=1 (3 February 2014).

http://www.conventions.coe.int/Treaty/Commun/ListeDeclarations.asp?NT=030&CM=8&DF=03/02/2014&CL=ENG&VL=1




56

51 CISA abolished this possibility for its contracting states. Pursuant to that provision,

admissibility of letters rogatory for search and seizure can be made dependent only on the

condition of double criminality or consistency with the law of the requested State. Changes

introduced by CISA have made the limitation of cooperation in the area of mutual legal

assistance no longer limited to extraditable offences only, in the context of European Union Member

States.

2. 2. 3. Consistency with the law of the requested Party

Contracting parties of the CoE-MLA-1959 have another possibility to limit their cooperation

obligations in relation to letters rogatory for the search and seizure of property – they can make it

dependent on the condition that the execution of the letter rogatory is consistent with the law of

the requested Party.204 Out of 28 Member States of the European Union, 24 have made such a

reservation.205 Subsequent legal instruments have not introduced any changes regarding this

question. That means that this reservation, pursuant to the mutual legal assistance model, still has

wide-spread application in relations between the Member States of the European Union.

However, what does it mean when it says that the execution of a letter rogatory needs to be

consistent with the law of the requested Party?

When analyzing this question, a distinction needs to be made between the law that determines the

conditions under which certain evidence gathering action may be ordered, and the law which

determines the manner in which a certain evidence gathering action shall be executed. Conditions

under which a certain evidence gathering action may be ordered are determined by the law of the

requesting State, but the manner in which that evidence gathering action shall be executed in the

territory of the requested State is determined by the law of the requested State. This arises out of

Article 3 (1) CoE-MLA-1959, which determines that the requested State shall execute any letter

rogatory relating to a criminal matter in the manner provided for by its law (locus regit actum).

204 Article 5 (1)(c) CoE-MLA-1959. 205 Only France, Greece, Italy and Latvia have not used this possibility. For a full list of declarations, reservations

and other communications in relation to the European Convention on Mutual Assistance in Criminal Matters, see the

Council of Europe web page, at:


G&VL=1 (4 February 2014).



57

Provision of Article 5(1)(c) of CoE-MLA-1959 enables the requested State to execute in its

territory only those letters rogatory relating to the search and seizure of property, (and other

evidence gathering actions which include the interference of the state into the fundamental rights

of an individual), which could have been ordered pursuant to the law of that state.206 This means

that by making such a reservation, contracting states determine the law of the requested State to

be decisive not only for the manner in which a certain evidence gathering action shall be

executed, but also for the conditions under which that action may be ordered. In practical terms,

this means that the requested State shall not execute in its territory a search order issued by a

court in the requesting State, unless such an order was issued, under the same conditions,

pursuant to the law of the requested State. This means that the evidence gathering measure

requested by the competent judicial authority of the requesting State needs to be available under

the law of the requested State.

3. Position of the individual

When the mutual legal assistance regime was developed, the individual was perceived as a pure

object of mutual legal assistance proceedings, the subjects of which were only the States

involved. However, with the development of human rights law after the Second World War,

awareness grew that the position of the individual also needs to be taken into consideration in the

mutual legal assistance proceedings. With this development, mutual legal assistance proceedings

changed from a two-dimensional, State to State relationship, into a three dimensional

relationship,207 where the interests of the individual concerned also have to be taken into

consideration.208 (see supra B. I. 4.)

This makes us question why there is a need to take into account the position of the individual and

what do the interests of the individual in mutual legal assistance proceedings stand for? Mutual

legal assistance proceedings raise questions in relation to the position of the individual both in the

206 In the same sense Vermeulen et al., 2010, 20. 207 On three-dimensional model of international cooperation in criminal matters, see Schomburg et al., 2012, 2-3. 208 Eser, Albin, Basic Issues of Transnational Cooperation in Criminal Cases, A Problem in Outline, Sonderdrucke

aus der Albert-Ludwigs-Universität Freiburg, 1994, p. 14-15.

58

requesting and in the requested State. In the requesting State, it is the position of the suspect and

his defence, and in the requested State it is the position of the individual whose fundamental

rights are affected by the requested assistance. In the cross-border gathering of evidence as a

specific form of mutual legal assistance, the suspect and his defence have their interests and that

their position in the national criminal proceedings does not change when the case involves the

gathering of evidence abroad. The individual affected by the gathering of evidence in the

requested State has an interest in guarantying that their fundamental rights are upheld – that their

fundamental rights are not endangered in the execution of an evidence gathering action at the

request of another State.

3. 1. Position of the defence

As previously stated, the defence have their interests and that its position in national criminal

proceedings of the requesting State are not changed when the case involves evidence which is

situated abroad. Mutual legal assistance proceedings inherently contain such a danger for the

position of the defence, where the possibility for national prosecution authorities to cooperate in

the gathering of evidence abroad is from the outset bigger than the possibility for the defence to

do the same. National prosecution authorities are better placed to become aware of the fact that

there is available evidence on the territory of another State and have greater financial and

operational possibilities than the defence to gather evidence abroad. However, if prosecution and

defence are to have an equal opportunity to affect the outcome of national criminal proceedings

in a case which has a transnational dimension, there should be no legal difference between the

prosecution and the defence in relation to the possibility of gathering evidence abroad. This

means that the defence should be given the opportunity to gather evidence abroad, or at least to

initiate the proceedings for the gathering of evidence abroad, and the possibility to participate in

the gathering of evidence abroad. Below it will be analysed to what extent mutual legal assistance

instruments take account of these considerations.

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3. 1. 1. Possibility for the defence to gather the evidence abroad

The defence should be given the opportunity to initiate the proceedings for the gathering of

evidence abroad. Only if the defence is given this opportunity, equality of arms between the

defence and the prosecution is safeguarded in cases with a transnational dimension. However,

mutual legal assistance instruments do not contain provisions which would take into account this

interest to the defence. The opportunity for the defence to initiate the gathering of evidence

abroad is therefore left to national provisions of Contracting Parties. National provisions, be it

national criminal procedure provisions or national provisions on international cooperation in

criminal matters, determine the extent to which the defence has the possibility to gather the

evidence abroad.

3. 1. 2. Participation in the gathering of evidence abroad

One of the fundamental rights of the defence in relation to evidence gathered by the prosecution

is to have that evidence tested. When it comes to evidence gathered abroad, the possibility for the

defence to test the evidence gathered by the prosecution is significantly smaller. The only way

that the defence will have to test the evidence which is gathered abroad is if it were given the

possibility to participate in the gathering of evidence. Mutual legal assistance instruments do not

contain provisions which would guarantee the defence the right to participate in the gathering of

evidence abroad. However, they do contain provisions which foresee the possibility for the

defence to participate in the gathering of evidence abroad. They foresee the possibility not only

for the officials, but also for other interested persons of the requesting State to be present in the

execution of a request for assistance in the requested State.209 Although these provisions do not

guarantee the defence the right of participation in the gathering of evidence abroad, at least the

need for such participation is recognized.

209 Article 4 CoE-MLA-1959.

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3. 2. Position of the individual affected

The cross-border gathering of evidence needs to be evaluated not only from the position of the

defence, but also from the position of the individual affected by the evidence gathering action in

the requested State. An individual situated in the requested State enjoys a spectre of fundamental

right protections, with these protections having great significance in the evidence gathering

process. Evidence gathering rules determine the degree to which the State is allowed to interfere

into the fundamental rights of an individual for fact finding purposes. The level of protection of

fundamental rights differs from State to State. However, cooperating States differ not only in

relation to the degree to which they allow the interference of the State into the fundamental rights

of an individual for evidence gathering purposes, they also differ with regards to which behaviour

they consider to be criminal. Problems for the individual affected by the evidence gathering

measure undertaken in the framework of mutual legal assistance arise when the requesting State

has stricter substantive criminal law than the requested State, and when it allows the interference

of the State into the fundamental rights of an individual to a higher degree than the requested

State. In this situation, the fundamental rights of the individual affected by the evidence gathering

action might be limited to a higher degree in the transnational context, than they would have been

in a purely national context.

Mutual legal assistance instruments take into account this perspective, and enable the requested

State to adapt the request for assistance to the demands of its legal order relating to fundamental

rights protection of the individual affected by the evidence gathering action requested. Among

the grounds for refusal of cooperation, there are some that take the perspective of the individual

into account. In relation to the differences between substantive criminal law in the requesting and

the requested State, the requested State has the possibility to refuse to undertake an intrusive

evidence gathering action if the underlying offence is not an offence pursuant to the requested

State’s criminal law.210 By using these grounds for refusal, the requested State protects the

individual situated on its territory from the possibility of being subjected to an intervention into

his fundamental rights for an act which is not recognized as a criminal offence on the territory of

the requested State. In relation to the differences between procedural criminal law in the

210 Article 5 (1)(a) CoE-MLA-1959.

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requesting and the requested State, the requesting State has the possibility to refuse to provide

assistance in relation to an intrusive evidence gathering action, if that action would not be

available in a similar domestic case pursuant to the law of the requested State.211 By using these

grounds for refusal, the requested State protects the individual from the possibility of being

subjected to an intervention into his fundamental rights, when such an intervention would not be

possible under the criminal procedural law of the requested State.

4. Preliminary conclusion

In relation to the mutual legal assistance model for cross-border evidence gathering, the

following preliminary conclusions can be made. Preliminary conclusions can be divided into two

groups: specific ones, which relate to the position of the requesting and the requested State, and

the position of the individual. Based on these specific preliminary conclusions, general

conclusions in relation to the mutual legal assistance model for cross-border evidence gathering

shall be given.

In relation to the position of the requesting State, the following preliminary conclusions can be

made:

- The requesting State does not have the possibility to order the gathering of evidence abroad.

The requesting State requests assistance from another State – the requested State. It requests

another State to undertake an evidence gathering action on the territory of the requested State for

the purpose of criminal proceedings that are taking place in the requesting State. The evidence

gathering action requested is ordered by the requested State. The scope of the obligation of the

requested State to satisfy the request of the requesting State is determined by the provisions of the

mutual legal assistance treaty that regulates cooperation between the respective States;.

- The requesting State has broad possibilities to request the gathering of evidence abroad, both

with respect to national proceedings in relation to which assistance may be requested, (not only

criminal proceedings, but also proceedings in relation to offences under administrative penal law;

in relation to the latter, both in the administrative and judicial part of the proceedings), and in

relation to evidence gathering actions that may be requested (not only are evidence gathering

211 Article 5 (1)(c) CoE-MLA-1959.

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actions explicitly regulated in mutual legal assistance instruments, but all other evidence

gathering actions);

- Mutual legal assistance instruments do not try to establish an equivalent between the competent

judicial authorities of the requesting and the requested State. The definition of authorities, which

institution is competent to issue a request for assistance, is left to the national law of the

requesting State;

- Mutual legal assistance instruments do not solve the issue of forum-shopping. They do not

oblige the requesting State to check the availability of the evidence gathering action requested

under the law of the requesting State prior to the issuing of a request for assistance;

- Regarding the transmission of the request for assistance, mutual legal assistance instruments

allow for direct communication between the competent judicial authorities of the requesting and

the requested State;

- Mutual legal assistance instruments are oriented towards the evidence gathering action to be

undertaken on the territory of the requested State, and not towards the evidence to be collected

there. The decision on the evidence gathering action to be undertaken is made by the requesting

State;

- Regarding the extent to which the requesting State is allowed to export its law to the territory of

the requested State, mutual legal assistance instruments determine that formalities and procedures

expressly indicated by the requesting State shall be observed by the requested State, unless they

are contrary to the fundamental principles of the law in the requested State;

- Officials of the requesting State do not have the right to participate in the execution of the

evidence gathering action on the territory of the requested State. The possibility for their

participation is made dependent on the consent of the requested State;

- Mutual legal assistance instruments do not provide for deadlines for execution of the request for

assistance.

With regard to the position of the requested State, the following preliminary conclusions can be

made:

- The obligation of the requested State to provide assistance to the requesting State is very loosely

defined. This relates both to the obligation to provide assistance and to the way in which

assistance will be provided;

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- Regarding the obligation to provide assistance, the requested State can make recourse to broadly

defined grounds for refusal of cooperation, whenever it considers that the assistance is likely to

prejudice the sovereignty, security, ordre public or other essential interests of its county.

Additional grounds for refusal which relate to double criminality and availability of the requested

evidence gathering action under the law of the requested State are provided when the evidence

gathering action requested presupposes intervention of the requested State into fundamental

rights of the individual;

- Regarding the way in which the assistance is provided - the way in which the requested

evidence gathering action is undertaken, the requested State is obliged to apply the law of the

requesting State only to the extent that this is not contrary to fundamental principles of its law.

There is no obligation of the requested State to “tolerate” the presence of the officials of the

requesting State on the territory of the requested State. The requested State is also not obliged to

undertake the evidence gathering action within a certain time-frame.

Regarding the position of the individual, following preliminary conclusions can be made:

- In relation to the position of the defence in the domestic proceedings of the requesting State:

there are no specific rights for the defence recognized in mutual legal assistance proceedings.

Mutual legal assistance instruments are developed primarily as instruments which regulate

cooperation between States concerned and between their competent judicial (prosecuting)

authorities;

- In relation to the position of the individual affected by the evidence gathering action undertaken

in the requested State: mutual legal assistance instruments contain no provisions which would

enable direct protection of the individual. The protection of the rights of the individual affected is

left to the cooperating States, in this case the requested State, by giving them the opportunity to

make use of one of the fundamental rights as grounds for the refusal of cooperation.

Based on these specific preliminary conclusions, some general conclusions regarding the mutual

assistance model for cross-border evidence gathering can be made:

- The mutual legal assistance model for cross-border evidence gathering initially developed in the

framework of the Council of Europe. It is a model which shows great respect for national

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sovereignty and other essential interests of cooperating States. Pursuant to this model, States are

obliged to cooperate, but their obligation to cooperate is understood in a very loose sense, since

they can make use of broadly defined grounds for the refusal of cooperation. The main

characteristic of this model is its flexibility, which characterizes both the position of the

requesting and the position of the requested State. Flexibility can be seen in the absence of any

strict rules which would regulate the obligation to cooperate and govern the way in which

assistance is provided. Flexibility of the model enables cooperating States to adapt cooperation

demands to their specific needs, but it is detrimental to the efficiency of cooperation, since it

guarantees no certainty that assistance will be provided (evidence will be gathered), and that the

way in which it is provided shall satisfy the needs of the criminal procedure of the requesting

State. Such a cooperation model may be acceptable if the crime which is prosecuted in the

requesting State is seen only as a problem of that State, which is understandable in cases where

the crime prosecuted in the requesting State is a domestic crime with a foreign dimension.

However, such a cooperation model does not fit the needs of transnational crime, where all the

States involved in cooperation should share a common interest in the effective prosecution of

crime.

However, the mutual legal assistance model does not show its shortcomings only in the sphere of

effectiveness, it also shows weaknesses with regards to the position of the individual, especially

the defence. Special problems which the defence encounters in cases with a transnational

dimension are not recognized in mutual legal assistance instruments and no specific rights are

afforded the defence, in the framework of cross-border evidence gathering in the mutual legal

assistance model.

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Chapter III. THE MUTUAL RECOGNITION MODEL

Part I. THEORETHICAL FOUNDATIONS

Previous chapters have shown that the cross-border gathering of evidence which is based on the

mutual legal assistance model demonstrates weaknesses, both in relation to the effectiveness of

transnational crime prosecution, as well as with regards to fundamental rights protection. It would

be wrong to conclude that these weaknesses are a consequence of the shortcomings in the

practical application of mutual legal assistance instruments. The cross-border gathering of

evidence based on this model is deficient not only on a practical level, but also on a theoretical

level. Its flaws on a theoretical level are a consequence of the basic principles on which this

model is built. Cooperation between states is built on principles which are designed to protect the

interests of cooperating States. Although this standpoint from a position of national sovereignty is

welcome, it does not enable the effective prosecution of transnational crime.

The shortcomings of the mutual legal assistance model of judicial cooperation in criminal matters

were noticed at the level of the European Union and measures were undertaken in order to tackle

them. The first solution offered at the European Union level was to improve the traditional

mutual legal assistance model. The Mutual legal assistance model was developed within the

framework of the Council of Europe, and measures were undertaken to adapt the model to meet

needs of the European Union. To this end, CISA contained provisions on “improved” judicial

cooperation in criminal matters. However, this was not all, and soon after CISA there was

adopted a specific EU mutual legal assistance convention. European Union mutual legal

assistance instruments made improvements in relation to traditional systems of judicial

cooperation in criminal matters. This was done by, reducing the number of grounds for the

refusal of cooperation, introducing the forum regit actum principle in the execution of letters

rogatory, or allowing for direct communication between the competent judicial authorities of

cooperating States. However, despite these improvements, European Union mutual legal

assistance instruments still remained based on basic principles of traditional judicial cooperation

in criminal matters, which did not offer appropriate perspectives for the effective combat of

transnational criminality.

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The effective combat of transnational criminality is an issue of specific interest for the European

Union. The national borders of states represent an effective mechanism to prevent transnational

criminal activities. The European Union is an area with no internal borders for persons, goods,

services, and capital. The abolition of national borders benefited the development of transnational

criminal activities in the European Union.212 Namely, while criminals operate on a transnational

level, not impeded by national borders, the same possibilities for transnational activities were not

open to law enforcement authorities of Member States. National borders remained in place for the

respective national law enforcement authorities.213 As a consequence of this, crime became more

and more transnational, while combating transnational crime remained national. In order to

combat transnational crime states needed to make use of mutual legal assistance mechanisms,

which did not provide for an appropriate legal framework to fight transnational crime effectively.

Therefore, new approaches needed to be developed, which would enable the creation of a

transnationally effective criminal law.214

It was not only the need to combat transnational crime effectively which pushed the European

Union towards finding new solutions in the area of judicial cooperation in criminal matters. After

the European Union proclaimed the creation of an area of freedom, security and justice as one of

its main objectives, traditional mechanisms of judicial cooperation in criminal matters became

obsolete from a political perspective. The creation of this area in the sphere of criminal justice

represents the transformation of the European Union into one single judicial area, comparable to

national criminal justice areas of Member States. In order to achieve this objective, the European

Union needed to develop new approaches to judicial cooperation in criminal matters. The

solution was found in the development of a new model of cooperation and this new model was to

be based on the principle of mutual recognition.215

212 Sieber, 2009, 3-4, Ouwerkerk, Jannemieke, Quid pro quo? A comparative law perspective on the mutual

recognition of judicial decisions in criminal matters, Intersentia, Cambridge-Antwerp-Portland, 2011, p. 58. 213 Satzger, Helmut, Zimmermann, Frank, From Traditional Models of Judicial Assistance to the Principle of Mutual

Recognition: New Developments of the Actual Paradigm of the European Cooperation in Penal Matters, in

Bassiouni, M. Cherif et al. (Eds.), European Cooperation in Penal Matters: Issues and Perspectives, CEDAM, 2008,

p. 337-338. 214 Sieber, 2009, 4. 215 Satzger/Zimmermann, 2008, 337-338.

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I. GENERALLY ABOUT THE PRINCIPLE OF MUTUAL RECOGNITION

1. Mutual recognition and harmonization of national criminal laws

The Main problem with cooperation models is the differences between the national criminal laws

of cooperating States. These differences exist in the organization of their criminal justice systems

and in their substantive and procedural criminal laws. In judicial cooperation in criminal matters,

these differences can be resolved either at the expense of the requesting, or at the expense of the

requested State. In the traditional mutual legal assistance model, they are resolved at the expense

of the requesting State, by giving the requested State broad possibilities to adapt the demands of

the request for assistance to the prerequisites of its own legal order, or, as a last resort, to refuse

to grant the assistance requested. Such a solution affects the efficiency of cooperation, because it

grants no certainty to the requesting State, which has taken the responsibility to prosecute

transnational crime, that it will be granted assistance or that the assistance granted will be adapted

to the needs of its own legal order. The obvious way to resolve the differences between

cooperating legal orders is their harmonization. In the process of harmonized criminal laws,

problems which arise out of different – competing and contradicting216 – provisions of national

legal orders disappear, and judicial cooperation can run more smoothly and effectively.

Harmonization of national criminal laws also represents a way of integrating national legal orders

of cooperating States.

Application of the principle of mutual recognition in the area of judicial cooperation in criminal

matters in the European Union can be seen as an effort to reconcile the interests of those who

wanted more integration and of those who wanted less integration between Member States

criminal justice systems.217 Namely, with the adoption of the Maastricht Treaty, the European

Union finally gained competence in the area of criminal law. However, in the post-Maasticht

period, it was noticeable that judicial cooperation in criminal matters between Member States is

improving very slowly. This is why proposals were put forward which foresaw greater

216 Sieber, 2009, 25-26. 217 Mitsilegas, Valsamis, EU Criminal Law, Hart Publishing, 2009, p. 116, Belfiore, Rosanna, Movement of Evidence

in the EU: The Present Scenario and Possible Future Developments, European Journal of Crime, Criminal Law and

Criminal Justice, 17(2009), p. 9.

68

integration of national criminal justice systems through harmonization of national criminal laws.

However, these proposals were not welcomed by Member States, who - considering criminal law

as an essential part of their sovereignty and national identity - opposed the proposals to

harmonize their criminal laws. In this situation, where it was clear that closer cooperation is

needed between Member States criminal justice systems in order to achieve European Union

objectives, but, at the same time, the harmonization of national criminal laws was not accepted as

a satisfactory solution by Member States. Thus, proposals were put forward to introduce the

principle of mutual recognition in the area of judicial cooperation in criminal matters.218

As previously stated, the mutual legal assistance model resolves the conflict between the laws of

cooperating States at the expense of the requesting State. The mutual recognition model, on the

contrary, resolves this conflict at the expense of the requested State, by allowing the “export” of

criminal law of the requesting State to the territory of the requested State, notwithstanding the

differences which exist between them.

2. Mutual recognition in the internal market

The principle of mutual recognition was, at the time, a well-known concept in European Union

law. It was a concept which was developed in the jurisprudence of the European Court of

Justice219 and applied to the area of the internal market.220 In the area of the internal market, the

principle of mutual recognition was introduced following the same problems with the

harmonization of national regulations that later appeared in the area of criminal law. The

adoption of European harmonized regulatory standards was hampered by “cumbersome decision-

making in the Council”.221 An absence of harmonized, European standards severely hampered the

218 Spencer, John R., An Academic Critique of the EU Acquis in Relation to Trans-Border Evidence Gathering, in

ERA-Forum, Special Issue: Dealing with European Evidence in Criminal Proceedings, National Practice and

European Union Policy, Trier, 2005, p. 33. 219 For the development of the principle in the jurisprudence of the European Court of Justice, see Gleß, Sabine, Zum

Prinzip der gegenseitigen Anerkennung, ZStW 116(2004), p. 354-356, Mavany, 2012, 18-23, Böse, Martin, Das

Prinzip der gegenseitigen Anerkennung in der transnationalen Strafrechtspflege in der EU, in Momsen, Carsten et

al. (Eds.), Fragmentarisches Strafrecht, Peter Lang, 2003, p. 234-235. 220 For the application of the principle in this areas, see Peers, Steve, Mutual Recognition and Criminal Law in the

European Union, Has the Council got it Wrong?, Common Market Law Review, 41(2004), p. 18-20. 221 Wagner, Wolfgang, Negative and Positive Integration in EU Criminal Law Cooperation, p. 3. “In the area of free

movement of goods it became evident that such a harmonization effort was extremely time-consuming, presupposed

69

free circulation of goods in the European Union internal market, since Member States remained

free to restrict market access on the basis of national regulations. However, the European Court

of Justice put an end to this with its milestone decision in the Cassis de Dijon222 case where it

declared that the free movement of goods does not require harmonized European standards.

Pursuant to the European Court of Justice, whenever a certain product is marketed in one

Member State in accordance with its regulatory standards, it must be accepted and freely

marketed as such in every other Member State, notwithstanding the fact that their regulatory

standards are not the same. Since its application in the area of the internal market proved to be

very successful and enabled the further development of an internal market within the European

Union, it was considered that its transfer to the area of criminal law would produce the same

effects in the latter.

In the internal market, the principle of mutual recognition functions on the premise of the

recognition of national standards which relate to the production and control of goods by other

European Union Member States. Notwithstanding the fact that different standards apply in

relation to the production of certain goods, all goods that are recognized as such in one Member

State, must also be accepted as such in another Member State. Different national regulatory

standards should not represent an obstacle to the free movement of goods within the European

Union.223

The effects of the principle of mutual recognition in the area of the internal market can be

illustrated as an example of the facts in the Cassis de Dijon case. The case was brought to the

European Court of Justice by the German importer Rewe, which was prohibited by the competent

German authority - the Bundesmonopolverwaltung für Branntwein, to import the French fruit

cream liquor – Cassis de Dijon, into Germany, because the levels of alcohol that the French

liquor contained was lower than the level of alcohol demanded for fruit cream liquor pursuant to

a lot of bureaucracy and new legal instruments and in the end was totally unrealistic”, Satzger, Helmut,

Zimmermann, Frank, From Traditional Models of Judicial Assistance to the Principle of Mutual Recognition: New

Developments of the Actual Paradigm of the European Cooperation in Penal Matters, in Bassiouni, M. Cherif et al.

(Eds.), European Cooperation in Penal Matters: Issues and Perspectives, CEDAM, 2008, p. 349. 222 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein, C-120/78, Judgment of the Court of 20 February

1979. 223 As Gleß scenically put it: “Bier ist Bier und Schnapps ist Schnapps”, Gleß, Sabine, Zum Prinzip der gegenseitigen

Anerkennung, ZStW 116(2004), p. 354-356.

70

German regulatory provisions. The European Court of Justice found that German rules on alcohol

levels for liquors constituted a measure having an effect equivalent to a quantitative restriction on

trade, which was prohibited by Article 28 of the Treaty on the European Community (now

Article 34 of the Treaty on the Functioning of the European Union).224 Therefore, any product

that is legally produced and marketed in one Member State must be accepted as such in every

other Member State.225

The same logic which is behind the principle of mutual recognition in the internal market should

also apply in the area of criminal law: notwithstanding the differences in national criminal justice

systems, every product of the national criminal justice system of one Member State should, in

principle, be recognized and executed in every other Member State, as if it were a product of the

national criminal justice system of the latter state. As the Commission defined it in its

Communication to the Council and the European Parliament, which was published in 2000, “once

a certain measure, such as a decision taken by a judge in exercising his or her official powers in

one Member State, has been taken, that measure - in so far as it has extra national implications -

would automatically be accepted in all other Member States, and have the same or at least similar

effects there.”226

3. Mutual recognition and mutual trust

The proper functioning of the principle of mutual recognition is based on the precondition of

mutual trust. Namely, in order for the principle of mutual recognition to be applied, there needs to

be mutual trust between Member States’ criminal justice systems in the first place. The basic idea

of mutual recognition is the recognition and execution of a judicial decision issued in another

Member State, even though the criminal justice system of the latter state differs from the criminal

224 “Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between

Member States.” 225 About the Cassis de Dijon case, see Gleß, 2004, 355. For the internal market point of view, see Mattera, Alfonso,

The Principle of Mutual Recognition and Respect for National, Regional and Local Identities and Traditions, in

Kostoris Padova Schioppa, Fiorella (ed.), The Principle of Mutual Recognition in the European Integration Process,

Palgrave Macmillan, 2005, p. 7 and further. 226 Communication from the Commission to the Council and the European Parliament, Mutual Recognition of Final

Decisions in Criminal Matters, COM(2000) 495 final, 26. 7. 2000, p. 2.

71

justice system of the former state. Mutual recognition is all about recognizing differences, and

mutual trust needs to exist in order for the recognition of differences to be acceptable.

However, what is mutual trust based on? It is based on the recognition of the fact that even

though criminal justice systems of Member States are different, they are all based on a set of

common principles.227 The basic principles upon which criminal justice systems are founded and

the proper functioning of these principles in national criminal justice systems are enough to

produce the equivalence of national criminal justice systems. Mutual trust is based on the

equivalence of national criminal justice systems,228 not on their similarity. Common principles on

which criminal justice systems of Member States are based on arise out of their adherence to the

European Convention on Human Rights and to the Charter of Fundamental Rights of the

European Union.229

The European Court of Justice referred to the interconnectedness of mutual recognition and

mutual trust for the first time in its Gözütok and Brügge judgment. In this judgment, which

referred to the EU-wide application of the ne bis in idem principle, the European Court of Justice

stated that; “there is a necessary implication that the Member States have mutual trust in their

criminal justice systems and that each of them recognises the criminal law in force in the other

Member States even when the outcome would be different if its own national law were

applied.”230 European Union institutions recognized the importance of mutual trust for the proper

functioning of the mutual recognition principle and have undertaken steps in order to enhance

mutual trust. On the legislative level, these steps include the harmonization of national criminal

laws in the area of human rights protection.231

227 Flore, Daniel, La notion de confiance mutuelle: l’ “alpha” ou l’ “omega” d’une justice pénale européenne?, in

de Kerchove, Gilles; Weyembergh, Anne (Eds.), La confiance mutuelle dans l’espace penal européen, Editions de

l?Université de Bruxelles, 2005, p. 21 and further, Janssens, Christine, The Principle of Mutual Recognition in EU

Law, Oxford University Press, 2013, p. 142. Pursuant to Sumominen, mutual trust is built on the “common

denominators of a common legal culture”, Suominen, Annika, The Principle of Mutual Recognition in Cooperation

in Criminal Matters, Intersentia, Cambridge – Antwerp – Portland, 2011, p. 47. 228 Klip, André, European Criminal Law, Inersentia, 2012, p. 362. 229 Mavany, Markus, Die Europäische Bewisanordnung und das Prinzip der gegenseitigen Anerkennung, C. F.

Müller, 2012, p. 65. 230 Judgment of the Court, 11 February 2003, Joined Cases C-197/01 and C-385/01, paragraph 33. 231 Communication from the Commission to the Council and the European Parliament, Communication on the

mutual recognition of judicial decisions in criminal matters and the strengthening of mutual trust between Member

States, COM(2005) 195 final, 19. 5. 2005, p. 6-8.

72

4. Introduction of the principle of mutual recognition in the area of criminal law

First proposal to extend the application of the principle of mutual recognition to the area of

criminal law was put by the UK Government during its EU Presidency in 1998.232 At the

Tampere European Council, which was held in 1999,233 the Council endorsed the principle of

mutual recognition “which, in its view, should become the cornerstone of judicial co-operation in

both civil and criminal matters within the Union.”234 In 2001, a Programme of measures to

implement the principle of mutual recognition of decisions in criminal matters was adopted,235

which foresaw the adoption of 24 measures which would introduce the principle in the area.

The first instrument proposed which was to introduce the principle of mutual recognition in

criminal matters was the Framework Decision on the execution in the European Union of orders

freezing property or evidence. Proposals for this Framework Decision were put forward in March

2001,236 but the first instrument adopted was the Council Framework Decision on the European

arrest warrant and the surrender procedures between Member States, which were adopted in June

2002. This Framework Decision was adopted in a record time-frame237 because it was considered

a necessary counter-terrorism measure in the circumstances following the attack on the World

Trade Centre in September 2001.238

232 Mitsilegas, Valsamis, EU Criminal Law, Hart Publishing, 2009, p. 116, De Bondt, Wendy, Vermeulen, Gert, First

Thing First, Characterizing Mutual Recognition in Criminal Matters, (where was it published?), p. 17. The idea to

introduce of the principle of mutual recognition in the area of judicial cooperation in criminal matters in the

European Union was proposed by criminal law scientists already in 1991, see Sieber. 2009, 32. 233 It was the first European Council which was entirely devoted to Justice and Home Affairs, see Belfiore, Rosanna,

Movement of Evidence in the EU: The Present Scenario and Possible Future Developments, European Journal of

Crime, Criminal Law and Criminal Justice, 17(2009), p. 2. 234 Tampere European Council, 15 and 16 October 1999, Presidency Conclusions, paragraph 33. 235 Programme of measures to implement the principle of mutual recognition of decisions in criminal matters, OJ C

12, 15. 1. 2001, p. 10. 236 Initiative by the Governments of the French Republic, the Kingdom of Sweden and the Kingdom of Belgium for

the adoption by the Council of a Framework Decision on the execution in the European Union of orders freezing

property or evidence, OJ C 75, 7. 3. 2001, p. 3. 237 The Commission put forward the Proposal in November 2001 (Proposal for a Council Framework Decision on the

European Arrest Warrant and the surrender procedures between the Member States, OJ C 332 E, 27. 11. 2011, p.

305), and the Council adopted the Framework Decision in June 2002 (Council Framework Decision of 13 June 2002

on the European Arrest Warrant and the surrender procedures between Member States, OJ L 190, 18. 7. 2002, p. 1). 238 Satzger, Helmut, Zimmermann, Frank, From Traditional Models of Judicial Assistance to the Principle of Mutual

Recognition: New Developments of the Actual Paradigm of the European Cooperation in Penal Matters, in

Bassiouni, M. Cherif et al. (Eds.), European Cooperation in Penal Matters: Issues and Perspectives, CEDAM, 2008,

p. 344.

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Once introduced in the area of criminal law, the principle of mutual recognition became a “motor

of European integration in penal matters.”239 Following the Framework decision on the European

Arrest Warrant, mutual recognition was also introduced in other areas of judicial cooperation in

criminal matters: orders freezing property or evidence,240 financial penalties,241 confiscation

orders,242 taking account of convictions,243 judgments imposing custodial sentences,244 probation

decisions,245 European Evidence Warrant,246 decisions rendered in absence,247 supervision

measures,248 and protection orders.249 Although the principle of mutual recognition is the

cornerstone of judicial cooperation in criminal matters in the European Union, it does not apply

in the same way in all the areas covered. There is no legally binding definition of the principle of

mutual recognition as it appears in different shapes and sizes in different legal instruments.250

All important European Union policy documents relating to the area of freedom, security and

justice following the Tampere European Council referred to mutual recognition as a leading

principle in the area of judicial cooperation in criminal matters. The Hague Programme refers to

239 Mitsilegas, Valsamis, EU Criminal Law, Hart Publishing, 2009, p. 115. 240 Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders

freezing property or evidence, OJ L 196, 2.8.2003, p. 45–55. 241 Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual

recognition to financial penalties, OJ L 76, 22.3.2005, p. 16–30. 242 Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual

recognition to confiscation orders, OJ L 328, 24.11.2006, p. 59–78. 243 Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member

States of the European Union in the course of new criminal proceedings, OJ L 220, 15.8.2008, p. 32–34. 244 Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual

recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of

liberty for the purpose of their enforcement in the European Union, OJ L 327, 5.12.2008, p. 27–46. 245 Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual

recognition to judgments and probation decisions with a view to the supervision of probation measures and

alternative sanctions, OJ L 337, 16.12.2008, p. 102–122. 246 Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence warrant for the

purpose of obtaining objects, documents and data for use in proceedings in criminal matters, OJ L 350, 30.12.2008,

p. 72–92. 247 Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions

2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural

rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the

absence of the person concerned at the trial, OJ L 81, 27.3.2009, p. 24–36. 248 Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of

the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to

provisional detention, OJ L 294, 11.11.2009, p. 20–40. 249 Directive 2011/99/EU of the European Parliament and of the Council of 13 December 2011 on the European

protection order, OJ L 338, 21.12.2011, p. 2–18. 250 De Bondt, Wendy, Vermeulen, Gert, First Thing First, Characterizing Mutual Recognition in Criminal Matters,

(where was it published?), p. 17.

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mutual recognition, once again, as the cornerstone of judicial cooperation in criminal matters.251

In the Stockholm programme, significant attention was devoted to the furthering of

implementation of mutual recognition.252 However, it was only with the provisions of the Lisbon

Treaty that the principle of mutual recognition was acknowledged in primary EU law.253

5. Mutual recognition and the Lisbon Treaty

In Article 67 (3) of the Treaty on the Functioning of the European Union,254 which forms a part

of the general provisions of Title V of the Treaty, Area of Freedom, Security and Justice, it is

declared that the Union will endeavour to ensure a high level of security through mutual

recognition in criminal matters and, if necessary, through the approximation of criminal laws.255

This provision clearly indicates the primary position of mutual recognition for the future

development of European Union criminal law. Approximation of national criminal laws is given

only a secondary character which has led some authors to conclude that the principle of mutual

recognition “appears to be the big winner in the Lisbon Treaty especially when compared with

the harmonization of criminal law.”256 This is confirmed by the further provisions of the Lisbon

Treaty, which relate exclusively to judicial cooperation in criminal matters. In these provisions it

is, first of all, reiterated that “judicial cooperation in criminal matters in the Union shall be based

on the principle of mutual recognition of judgments and judicial decisions and shall include the

approximation of the laws and regulations of the Member States”.257 Harmonization may refer

both to substantive and procedural criminal law of the Member States. However, when it comes

to criminal procedural law, harmonization is put in the service of mutual recognition: “To the

extent necessary to facilitate mutual recognition of judgments and judicial decisions and police

251 The Hague Programme: Strengthening Freedom, Security and Justice in the European Union, OJ C/53, 3. 3. 2005,

p. 1-14, p. 12. 252 The Stockholm Programme — An Open and Secure Europe Serving and Protecting Citizens, OJ C/115, 4. 5.

2010, p. 1-38, p. 12-13. 253 Đurđević, 2008, 1090. 254 OJ C/326, 26. 10. 2012., p. 47-199. 255 “The Union shall endeavour to ensure a high level of security through measures to prevent and combat crime,

racism and xenophobia, and through measures for coordination and cooperation between police and judicial

authorities and other competent authorities, as well as through the mutual recognition of judgments in criminal

matters and, if necessary, through the approximation of criminal laws.” 256 Mitsilegas, Valsamis, EU Criminal Law, Hart Publishing, 2009, p. 156. 257 Article 82 (1) TFEU.

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and judicial cooperation in criminal matters having a cross-border dimension, the European

Parliament and the Council may, by means of directives adopted in accordance with the ordinary

legislative procedure, establish minimum rules”258.

6. Criticism of the application of mutual recognition in the area of criminal law

Although the introduction of the principle of mutual recognition has made judicial cooperation in

criminal matters one of the fastest developing areas of EU law, its application in the area of

criminal law has not been free of controversy. It has often been claimed that it is not possible to

uncritically transfer a principle which proved to be successful in the area of the internal market to

the area of criminal law. In order to defend this standpoint, a number of arguments were raised.

Firstly, it referred to the qualitative differences between the area of criminal law and the area of

internal market. The functioning of these two areas is based on different logic and subjected to

different rules. While the internal market requires flexible rules and is oriented towards profit

maximization, the criminal justice area requires clear and predictable rules and is oriented

towards a balanced regulation of the relationship between the individual and the state.259 Due to

these qualitative differences, a principle which has been shown to function successfully in one

area, cannot just simply be transferred to another and be expected to function properly.

Not only is the internal market and the criminal justice qualitatively different areas, but the

principle of mutual recognition functions differently and has different effects in these two areas.

In the internal market, national regulatory standards of one Member State are recognized by

national administrators and legislators of another Member State. In the area of criminal law,

decisions of judicial authorities of one Member State are recognized and executed by the judicial

authorities of another Member State. The intensity of the intervention of the “host country” is

much greater in the area of criminal law than in the internal market: in the area of criminal law,

the judicial decision of the “home country” is not only recognized, but also executed, if needs be,

258 Article 82 (2) TFEU. Harmonization of criminal procedural laws may concern the following areas: mutual

admissibility of evidence between Member States, the rights of individuals in criminal procedure, the rights of

victims of crime, and any other specific aspects of criminal procedure which the Council has identified in advance by

a decision; for the adoption of such a decision, the Council shall act unanimously after obtaining the consent of the

European Parliament. 259 Mitsilegas, Valsamis, EU Criminal Law, Hart Publishing, 2009, p. 117-118.

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by the use of coercive measures. Finally, effects that are produced by the principle of mutual

recognition are different in both areas: in the internal market, mutual recognition leads to the

facilitation of the free movement of products and persons, while when applied in the area of

criminal justice, it leads to the facilitation of the free movement of enforcement rulings, thereby

limiting the freedom of the individual.260

Another important issue which has been raised against the introduction of the principle of mutual

recognition in the area of criminal law is that its introduction has not been prepared by the

adoption of common European standards in the area of criminal law. As Peers shows, for the

principle of mutual recognition to be applied in the area of the internal market, normally either

some basic comparability of underlying national laws or the adoption of EU legislation which

ensures that national laws are sufficiently comparable is required.261 On the contrary, in the area

of criminal law, the principle of mutual recognition has been introduced as a surrogate for the

harmonization of national criminal laws. However, the application of the mutual recognition

principle in practice has shown that a certain level of harmonization of national criminal laws is

necessary if the principle of mutual recognition is going to function well.262 This led the EU

institutions to devote more attention to the adoption of common minimum standards primarily in

the criminal procedure sphere.


Problems encountered with judicial cooperation in criminal matters in the European Union

clearly showed that a change is needed in order to create a transnationally effective criminal law.

260 Mitsilegas, Valsamis, EU Criminal Law, Hart Publishing, 2009, p. 118, Gleß, 2004, 356. However, Gleß also

introduces a counter-thesis, pursuant to which the principle of mutual recognition does not necessarily lead to the

European-wide execution of the post punitive legal order, therefore causing the collapse of the balance of interests of

effective prosecution of crime and the protection of the rights of individual, but can also be seen as a “neutral

procedural model” (neutrales Verfahrens-Modell), which can be used as an adequate tool for the integration of

European criminal legal order. However, the capability of the principle of mutual recognition to serve as the basis of

European integration in the area of criminal law is dependent of the surrounding in which the principle operates. For

the elaboration of the counter-thesis, see Gleß, 2004, 356 and further. 261 Peers, Steve, Mutual Recognition and Criminal Law in the European Union, Has the Council got it Wrong?,

Common Market Law Review, 41(2004), p. 5. 262 Stessens, Guy, The Joint Initiative of France, Sweden and Belgium for the adoption of a Council Framework

Decision on the Execution in the European Union of Orders Freezing Assets or Evidence, p. 99.

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Differences between Member States’ criminal justice systems represented a strong obstacle for

effective combat against transnational criminality. The obvious solution was to harmonize the

national criminal laws of Member States. However, harmonization was not acceptable for

Member States, who still considered criminal law an essential part of their sovereignty and

national identity.

The solution was found in the principle of mutual recognition. In European Union law mutual

recognition was not a new concept. It was developed in internal market law. Applied there, it

enabled the creation of a common internal market with the free movement of goods, without the

previous harmonization of national regulatory standards. The basic idea of mutual recognition is

the acceptance of goods coming from other Member States, although they are produced following

different national regulatory standards.

The same basic idea should apply to the area of criminal law. Judicial decisions of authorities of

one Member State should be recognized and executed in another Member State, notwithstanding

the fact that organizational, substantive and procedural criminal law provisions of the “home”

State are different that those of the “host” State.

Recognition of a foreign decision is based on trust in criminal justice systems of cooperating

States. Trust is not built on similarity, but on equivalence, which is founded on the fact that all

Member States have a common set of basic criminal justice principles and are devoted to

fundamental rights protection.

The mutual recognition idea was eagerly welcomed by European Union institutions and Member

States. It became the cornerstone of judicial cooperation in criminal matters in the European

Union and motor for its development. A number of legal instruments were adopted which applied

the principle in the area of judicial cooperation in criminal matters. However, not everybody

welcomed it so eagerly, and a number of objections to the introduction of the principle of mutual

recognition in the area of criminal law were raised. However, this did not affect European Union

policy, which is shown by the provisions of the Lisbon Treaty, where mutual recognition is

recognized as a basic concept of judicial cooperation in criminal matters in the European Union.

78

In the next chapter, the changes brought by the introduction of the principle of mutual recognition

in the area of judicial cooperation in criminal matters will be analyzed. In other words, the main

differences between the mutual legal assistance and the mutual recognition model of judicial

cooperation in criminal matters will be presented and analyzed.

II. MUTUAL RECOGNITION IN THE AREA OF JUDICIAL COOPERATION IN

CRIMINAL MATTERS

After describing the main characteristics of the principle of mutual recognition and the reasons

for its introduction in the area of judicial cooperation in criminal matters in the European Union,

the consequences of its introduction in this area will be analyzed. Along with an analysis of what

has changed in this area because of the introduction of the principle of mutual recognition. This

shall be done using a comparison between the traditional judicial cooperation in criminal matters

and judicial cooperation in criminal matters based on the principle of mutual recognition.

1. Change of paradigm – from requesting assistance to ordering measures

In the mutual legal assistance model of judicial cooperation in criminal matters, the requesting

State sends a request for assistance to the requested State. The requested State decides about the

request, and if the decision is positive, grants the assistance requested by undertaking the measure

which was the object of assistance on its territory.263

The mutual recognition paradigm of judicial cooperation in criminal matters is significantly

different from that. Pursuant to the mutual recognition paradigm, decisions issued by one State

(in mutual recognition model it is not the requesting, but the issuing State) should automatically

be recognized and executed in the territory of any other Member State (in the mutual recognition

model it is not the requested, but the executing State). This means that the issuing State does not

263 On the “request principle” in judicial cooperation in criminal matters, see Banach-Gutierrez, Joanna Beata,

Globalised Criminal Justice in the European Union Context, How Theory Meets Practice, New Journal of European

Criminal Law, Vol. 4, Issue 1-2, 2013, p. 155.

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request assistance from the executing State, but issues a decision which automatically produces

extra-territorial effects. In ultima linea, the issuing State does not request assistance from the

executing State, but orders the undertaking of the measure on the territory of the requested State.

Previously, when the mutual legal assistance model was analyzed, it was concluded that the

model does not combat against transnational criminality effectively, because it protects the

position of the requested State by granting it a lot of discretion when it makes a decision on the

request for assistance. The mutual recognition model takes the opposite approach, thus, it

produces extra-territoriality of the decision of the issuing State by abolishing any discretion on

the side of the executing State, which has to recognize and execute any decision issued – any

measure ordered – by the issuing State.

2. Enhanced stringency of cooperation

Besides changing the paradigm of judicial cooperation in criminal matters by making a shift from

requesting assistance to ordering measures that shall be undertaken on the territory of another

State, the mutual recognition model is characterized by further differences in relation to the

traditional model of judicial legal assistance. One of the major characteristics of the mutual legal

assistance model was its flexibility, which enabled the cooperating States to adapt cooperating

needs to their sovereign interests and the demands arising from their domestic legal order.

Flexibility made mutual legal mechanisms unreliable and slow264, and as a consequence reduced

264 A statement that traditional mutual legal assistance represents a slow and ineffective mechanism for the

transnational enforcement of criminal law is one that is often encountered in the official documents of the EU

institutions which relate to the principle of mutual recognition and the necessity of its implementation in the area of

EU criminal law. See, for example, the Detailed Statement of the Proposal for a Directive Regarding the European

Investigation Order (COPEN 117, EUROJUST 49, EJN 13, PARLNAT 13, CODEC 384, Brussels, 23. 6. 2010, p. 9

and further, 30) or its Explanatory Memorandum (COPEN 117, EUROJUST 49, EJN 13, PARLNAT 13, CODEC

384, Brussels, 3. 6. 2010, p. 12. On cumbersome and lengthy international cooperation which hampers the

investigation of cases with a European dimension, see OLAF, Eleventh Operational Report on the European Anti-

Fraud Office, 1 January to 31 December 2010). It is also a statement which is often encountered in the relevant

scientific literature (Sieber, 2000, 188-189; the author reproduces the experiences of a Geneva General Public

Prosecutor who claims that the slowness and unreliability of judicial cooperation in criminal matters is so

emphasized, that the accused in the criminal procedure at hand can reasonably hope for his criminal prosecution to

become statute-barred while the public prosecutor waits for the results of a request of assistance to arrive. In many

cases the requests for assistance are not replied. Lach brings basically the same statements: that it is not uncommon

that requests remain unanswered for months and sometimes years or that they even “disappear”, see, Lach,

Arkadiusz, Transnational Gathering of Evidence in Criminal Cases in the EU de lege lata and de lege ferenda,

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their capability for being used as an instrument for effectively combating transnational

criminality. The mutual recognition model abandons the flexibility of mutual legal assistance

instruments and replaces it with enhanced stringency in cooperation. Enhanced stringency of

cooperation should enable judicial cooperation in criminal matters to develop into a more reliable

and faster mechanism of combat against transnational criminal activities.265 This shift from

flexibility to stringency is already visible on the level of technical terms: cooperating States are

no more the requesting and the requested State, now they are the issuing and the executing State.

However, much more important than technical terms, stringency of cooperation is visible in

provisions which regulate cooperation. Two groups of provisions are of special interest here:

grounds for refusal of cooperation and deadlines for the recognition and execution of a decision

emanating from the issuing Member State.

2. 1. Reduced number of grounds for refusal

As previously explained, the mutual recognition model functions on the premise that a decision

issued in one Member State should be recognized and executed in another Member State.

Differences between the criminal laws of Member States should not be used as an excuse not to

recognize the effects of a foreign decision in the domestic legal order of the executing State.

Understood this way, the principle of mutual recognition would mean automatic recognition and

execution of a foreign judicial decision. However, because of the introduction of the principle of

mutual recognition that was not followed up by the harmonization of national criminal laws of

Member States, the mutual recognition model was not applied in the version of “automatic

recognition and execution”. Differences between the national criminal laws of Member States

made it necessary to maintain the possibility for the executing State to refuse recognition and

execution of a foreign judicial decision.266

eucrim 3 (2009), p. 108. See also Bachmaier Winter, 2010, 582). The result of a recent study which was undertaken

by a group of international scholars led by Wade, which was based on interviews undertaken with practitioners who

deal with “Euro-crimes” in different Member States of the EU, showed the same results, see Wade, Marianne,

EuroNEEDS – Evaluating the Need for and the Needs of a European Criminal Justice System, Max-Planck-Institut

für ausländisches und internationales Strafrecht, 2011, p. 141 and further. 265 Vermeulen, G. et al., EU cross-border gathering and use of evidence in criminal matters, Towards mutual

recognition of investigative measures and free movement of evidence?, Maklu, Antwerpen-Apeldoorn-Portland,

2010, p. 76. 266 Mitsilegas, EU Criminal Law, p. 127-129.

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However, although it was necessary to maintain the institute of grounds for refusal of

cooperation, the attitude towards them changed. In the mutual legal assistance model grounds for

refusal were broadly defined and allowed the requested State a lot of discretion when making a

decision about granting the assistance requested. Next to the grounds for refusal that were

recognized in mutual legal assistance instruments, cooperating States had the possibility to

introduce new grounds for refusal, by entering a reservation to the provisions of the respective

mutual legal assistance instrument. All this made judicial cooperation in criminal matters

unreliable and its results unpredictable.

In order to remedy this, the mutual recognition model limits the number of the grounds for refusal

to an exhaustive list and defines them narrowly, in order to make sure that cooperation will be

refused only in the situation provided for by the mutual recognition instrument and only to the

extent allowed by such instruments.

One of the major innovations of mutual recognition instruments in the area of grounds for refusal

was its attitude towards double criminality. In the mutual legal assistance model of judicial

cooperation in criminal matters, double criminality requirement had a prominent place. In

extradition law, the absence of double criminality was grounds for refusal of cooperation. In

mutual legal assistance law, double criminality was not a general ground for refusal of

cooperation, but still had a broad scope of application. It could be used as grounds for the refusal

of cooperation whenever a request for assistance demanded the undertaking of an evidence-

gathering action which represented an interference of the requested State into the fundamental

rights and freedoms of an individual. In the mutual recognition model of judicial cooperation in

criminal matters the double criminality requirement was partially abandoned, in relation to a list

of offences. In relation to the offences which found its place on the list, which is given in the

respective mutual recognition instrument, double criminality could no longer be applied as

grounds for the refusal of cooperation. This applied both to extradition law and to mutual legal

assistance law.267

267 On double criminality ground as a ground for refusal of cooperation in mutual recognition model, see Mavany,

39.

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2. 2. Strict deadlines

In the mutual legal assistance model of cooperation, there was no provision on deadlines in which

a request for assistance must be refused or granted. In this regard, mutual legal assistance

instruments did not go any further than stating that the requested State shall take as full account

as possible of procedural deadlines and other deadlines indicated by the requesting Member

State.268 An absence of deadlines was a logical consequence of the basic principles of the mutual

legal assistance model, pursuant to which there is no strict obligation for the requested State to

provide assistance to the requesting State. Thereby, next to uncertainty as to whether a request for

assistance will be granted or not, uncertainty in relation to when a request for assistance will be

granted was added. The absence of a strict obligation to grant assistance and to grant it in a timely

fashion resulted in significant delays in the execution of requests for assistance and as a result,

the efficiency of cooperation suffered.269

To make sure that judicial cooperation will be provided in a timely fashion and within the time-

frame that corresponds to the needs of the domestic criminal procedure of the issuing State,

mutual recognition instruments introduced strict deadlines for the recognition and execution of a

request for assistance. The executing State is not only encouraged to take “as full account as

possible” of the deadlines indicated by the issuing State, but is obliged to grant assistance within

the prescribed or indicated time-frame.

3. Judicialization of cooperation

The third aspect which significantly differentiates the mutual recognition cooperation model from

the mutual legal assistance model is the judicialization of cooperation. Under the terms of the

judicialization of cooperation, it is understood that judicial cooperation in criminal matters has

moved from the area of political influence to the area of pure judicial matters.

268 Article 4 (2) EU-MLA-2000. 269 For importance of deadlines in judicial cooperation in criminal matters, see Vermeulen, G. et al., EU cross-border

gathering and use of evidence in criminal matters, Towards mutual recognition of investigative measures and free

movement of evidence?, Maklu, Antwerpen-Apeldoorn-Portland, 2010, p. 100-104.

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In the mutual legal assistance model the subjects of cooperation are the cooperating States, the

requesting and the requested State. Initially, requests for assistance were sent from one State to

another through diplomatic channels. Later on, diplomatic channels of communication were

substituted with communication between the ministries (of justice) of the cooperating States. This

way of communication emphasized that the subjects of cooperation are the cooperating States,

and not their judicial authorities. It also enabled the judicial cooperation proceedings to go

through the “governmental filter”, where the request for assistance can be assessed through the

lens of political considerations. Later on, the possibility for direct communication between

competent judicial authorities of cooperating States was opened in the traditional model of

judicial cooperation in criminal matters. However, this did not mean the end of political

considerations in cooperation proceedings. The possibility for the request for assistance to go

through the governmental filter was upheld. This was due to the fact that some of the grounds for

the refusal of cooperation in the mutual legal assistance system necessitate the evaluation of the

request for assistance from the standpoint of the essential interests of the requested State. Such an

evaluation necessarily includes a political dimension, since political considerations are included

because governmental bodies are better placed than judicial authorities to make such an

assessment.

In the mutual recognition model, judicial cooperation in criminal matters should be fully

judiciarised. This means three things. First of all, subjects of judicial cooperation in criminal

matters are not the States involved, but their competent judicial authorities. In the issuing State, it

is the issuing authority – an authority which is competent to issue a decision which has to

recognize and execute it in another Member State. In the executing State, it is the executing

authority – an authority which is competent to recognize and execute a decision issued by the

issuing authority. Second, as a logical consequence of the change in the subjects of judicial

cooperation in criminal matters, communication between the ministries of justice of the

cooperating States has been abandoned and direct communication between the competent judicial

authorities was introduced as an exclusive way of communication. Third, political considerations

were excluded from the judicial cooperation proceedings. Exclusion of political considerations

was necessary in order to make judicial cooperation in criminal matters an effective mechanism

to combat transnational criminality. As long as political considerations are included and every

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cooperating State assesses cooperation from the point of view of its own sovereign interest,

judicial cooperation cannot be improved as an effective tool for the prosecution of transnational

crime. The exclusion of political considerations can be seen in the exclusion of grounds for

refusal which relate to the sovereign interests of the cooperating States, as well as from the

exclusion of national governments from the proceedings of judicial cooperation.


The introduction of the principle of mutual recognition brought significant changes into the area of

judicial cooperation in criminal matters and changed its paradigm. The traditional model of judicial

cooperation in criminal matters is founded on the ideas of national sovereignty and territoriality,

whereby a decision of judicial authorities of one State produces effects only on the territory of

that State. The decisions of the judicial authorities of one State can produce effects on the

territory of another State only if the latter State agrees to it. The mutual recognition model of

judicial cooperation in criminal matters reshapes the traditional ideas of national sovereignty and

territoriality. The decisions issued by the judicial authorities of one State should produce effects

on the territory of all other European Union Member States. Instead of the idea of national

territoriality, the mutual recognition model of judicial cooperation in criminal matters introduces

the idea of European Union territoriality. However, European Union territoriality is not created

by the development of a single and unified legal order in the European Union. It is created by the

recognition of extra-territoriality of national legal orders of European Union Member States. The

traditional model of judicial cooperation in criminal matters is oriented towards the position of

the requested State, by giving it broad possibilities to protect its national sovereignty and the

coherence of its domestic legal order. The mutual recognition model of judicial cooperation in

criminal matters is oriented towards the position of the requesting (issuing) State, by granting it

broad possibilities to expand the effects of its national judicial decision in the domestic legal

orders of other European Union Member States. The requesting (issuing) State does not request

assistance from other Member States, but orders the undertaking of an action or measure on the

territory of the requested (executing) State. The requested (executing) State is obliged to

recognize and execute the decision issued in other European Union Member States,

notwithstanding the differences in their national legal orders.

85

However, since the creation of extra-territoriality of national judicial decisions it is not followed

by the elaboration of common European standards in the area of criminal law, the obligation of

the requested (executing) State to recognize and execute a decision emanating from the legal

order of another Member State is limited. The requested State still has the possibility to make use

of the grounds for the refusal of cooperation. However, the number of grounds for refusal is

limited and they are defined narrowly, in order to raise the predictability of cooperation.

In comparison to the traditional model of judicial cooperation in criminal matters, the mutual

recognition model represents a more stringent form of cooperation. In place of the flexibility of

traditional cooperation, which made that model of cooperation ineffective and its results

uncertain, the mutual recognition model introduces strict obligations. The stringency of the

mutual recognition model is best seen in the limited number of grounds for the refusal of

cooperation and in the introduction of cooperation deadlines.

The last important difference between the traditional and the mutual recognition model of

cooperation is the judiciarisation of cooperation, which means that judicial cooperation is no

longer seen as a procedure the subjects of which are the cooperating States. Now the subjects of

cooperation are the judicial authorities of cooperating States, and cooperation proceedings are

released from the influence of political considerations.

After presenting the consequences that the introduction of the principle of mutual recognition had

in the area of judicial cooperation in criminal matters generally, the effects of this principle in the

area of cross-border evidence gathering shall be presented in detail.

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Part II. NORMATIVE ANALYSIS

I. LEGAL INSTRUMENTS GOVERNING CROSS-BORDER GATHERING OF

EVIDENCE PURSUANT TO THE MUTUAL RECOGNITION MODEL

The mutual recognition model of judicial cooperation in criminal matters was not introduced into

the area of evidence overnight. Its introduction in the area of evidence was gradual, from

instruments with a very narrow scope of application to instruments with a broader scope of

application. The first instrument which applied mutual recognition logic into the area of evidence

was the Framework Decision on the execution in the European Union of orders freezing property

or evidence.270 This Framework Decision was adopted in July 2003 and was followed by the

Framework Decision on the European evidence warrant for the purpose of obtaining objects,

documents and data for use in proceedings in criminal matters271, which was adopted in

December 2008. The process of introduction of the principle of mutual recognition in the area of

judicial cooperation in relation to evidence was finished after the adoption of the Directive

regarding the European Investigation Order in criminal matters,272 which was adopted in April

2014.

1. Framework Decision on Freezing Orders

1. 1. Background and adoption

With the Tampere European Council the principle of mutual recognition was proclaimed as „the

cornerstone of judicial cooperation in both civil and criminal matters within the Union.

“273Tampere European Council Conclusions foresaw the application of the principle of mutual

270 Council Framework Decision 2003/577/JHA on the execution in the European Union of orders freezing property

or evidence, OJ L 196, 2.8.2003, p. 45–55. 271 Council Framework Decision 2008/978/JHA on the European evidence warrant for the purpose of obtaining

objects, documents and data for use in proceedings in criminal matters, OJ L 350, 30.12.2008, p. 72–92. 272 Directive 2014/41/EU of the European Parliament and of the Council regarding the European Investigation Order

in criminal matters, OJ L 130, 1.5.2014, p. 1–36. 273 Presidency Conclusions, Tampere European Council, 15 and 16 October 1999, point 33.

87

recognition not only in judgments, but also to other decisions of judicial authorities, including

pre-trial decisions. Among judicial decisions rendered in the pre-trial phase of the proceedings –

pre-trial orders – those “which would enable competent authorities to quickly secure evidence

and to seize assets which are easily movable” were specifically emphasized.274 In the Programme

of measures to implement the principle of mutual recognition in criminal matters, first priority

was given to the adoption of an instrument that would introduce the principle of mutual

recognition into the area of freezing property or evidence.275 Prioritizing an area that relates to

provisional measures on freezing property and evidence can be explained by two factors: by the

need to enable competent judicial authorities of Member States to quickly freeze property and

evidence on an international level and in the absence of any international instrument that provides

for the recognition of provisional measures.276

Following these developments, in July 2003 the Council adopted a Framework Decision on the

execution in the European Union of orders freezing property or evidence.277 The initiative for the

adoption of the Framework Decision came from three Member States.278 At the time of its

adoption, it was the first mutual recognition instrument which was adopted in the area of mutual

legal assistance.279 This also makes it the first instrument introducing the principle of mutual

recognition in the area of cross-border evidence gathering.

274 Presidency Conclusions, Tampere European Council, 15 and 16 October 1999, point 36. 275 Programme of measures to implement the principle of mutual recognition of decisions in criminal matters, OJ C

12, 15. 1. 2001, p. 10. “Measure 6: Drawing up of an instrument concerning the recognition of decisions on the

freezing of evidence, in order to prevent the loss of evidence located in the territory of another Member State.

Measure 7: Drawing up of an instrument on the mutual recognition of orders to freeze assets. This instrument should

make it possible, in an emergency, to bypass mutual assistance procedures and to have assets temporarily frozen

through enforcement of an order issued by a court in another Member State.” 276 Stessens, Guy, The Joint Initiative of France, Sweden and Belgium for the adoption of a Council Framework

Decision on the Execution in the European Union of Orders Freezing Assets or Evidence, in de Kerchove and

Weyembergh (Eds.), La Reconnaissance Mutuelle des Décisions Judiciaires Pénales dans l’Union Européenne,

Editions de l’Université de Bruxelles, 2001, p. 91. 277 Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders

freezing property or evidence, OJ L 196, 2. 8. 2003, p. 45-55. 278 Initiative by the Governments of the French Republic, the Kingdom of Sweden and the Kingdom of Belgium for

the adoption by the Council of a Framework Decision on the execution in the European Union of orders freezing

assets or evidence, OJ C 75, 7.3.2001, p. 3–8. 279 Gleß, Sabine, Sicherstellung von Vermögensgegenständen oder Beweismitteln in der EU, in Sieber, Ulrich et al.

(Eds.), Europäisches Strafrecht, Nomos Verlagsgesellschaft, Baden-Baden, 2011, p. 611. But, it was not the first

instrument which introduced the principle of mutual recognition in criminal matters. This was achieved with the

Council Framework Decision on the European arrest warrant, which was adopted in June 2002.

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1. 2. Provisions of the Framework Decision

Framework Decision establishes rules under which a Member State shall recognise and execute

in its territory a freezing order issued by a judicial authority of another Member State.280 Only

freezing orders which were adopted in the framework of criminal proceedings in the issuing State

come into the scope of application of the Framework Decision.281 A freezing order is defined as

any measure taken by a competent judicial authority in the issuing State in order provisionally to

prevent the destruction, transformation, moving, transfer or disposal of property that could be

subject to confiscation or evidence.282 Evidence is defined narrowly: it includes only objects,

documents and data which could be produced as evidence in criminal proceedings.283 Conditions

for issuing a freezing order are determined by the law of the issuing State as is the scope of

measures which may be ordered by a freezing order. The Framework Decision contains a

provision which determines that the principle of mutual recognition presupposes confidence that

the freezing order will always be taken in the issuing State in compliance with the principles of

legality, subsidiarity and proportionality.284

Pursuant to the principle of mutual recognition, the competent judicial authorities of the

executing State shall recognise a freezing order without any further formality being required and

shall forthwith take the necessary measures for its immediate execution in the same way as for a

freezing order made by an authority of the executing state.285 This is a typical feature of the

mutual recognition regime. While the conditions for issuing a freezing order are determined by

the law of the issuing State, the conditions for its execution are determined by the law of the

executing State. However, the law of the issuing State may also determine the conditions for the

execution of the freezing order in the territory of the executing State. Namely, the executing

authority is obliged to observe the formalities and procedures expressly indicated by the issuing

authority, to the extent necessary to ensure that the way in which the evidence is frozen is not

280 Article 1 FD FO. 281 With regard to domestic proceedings in relation to which an order may be issued, scope of application of the

Framework Decision can be characterized as narrow. As previously showed, in the mutual legal assistance model of

judicial cooperation in criminal matters, requests for assistance may be issued not only in relation to criminal

proceedings, but also in relation to proceedings for offences under administrative penal law. See supra … 282 Article 2 (c) FD FO. 283 Article 2 (e) FD FO. 284 Recital 4 of the Preamble FD FO. 285 Article 4 (1) FD FO.

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going to affect its admissibility before the courts of the issuing State, and under the condition that

such formalities and procedures are not contrary to the fundamental principles of law of the

executing State.286

Although the executing authority is obliged to recognize a freezing order emanating from the

issuing State “without any further formality” and “forthwith take the necessary measures for its

immediate execution”, this obligation has its limits. The executing authority can invoke one of

the grounds for non-recognition or non-execution which are provided in the Framework Decision.

The Framework Decision contains a very limited number of grounds for refusal, stating only four

of them.

One of the typical characteristics of mutual recognition instruments is limited applicability of the

double criminality requirement. This means that the application of this requirement is abolished

when it comes to cooperation regarding certain offences. Framework Decisions follows this path

and prescribes 32 offences, which are enlisted in Article 3 (2), provided that they are punishable

in the issuing State by a custodial sentence of a maximum period of at least three years, shall not

be subject to the verification of the double criminality of the act. However, in relation to other

offences, which are not on the list, the executing State may subject the recognition and

enforcement of a freezing order to the requirement of double criminality.287 Recognition and

execution of a freezing order may also be refused if there are some shortcomings in the certificate

which has to be attached to the freezing order, if there is an immunity or privilege under the law

of the executing State which makes the execution of the freezing order impossible, or if its

recognition or execution would infringe the ne bis in idem principle.288 Besides grounds for non-

recognition and non-execution, the Framework Decision also recognizes grounds for

postponement of execution of a freezing order: if its execution might damage an ongoing

286 Article 5 (1) FD FO. 287 Article 3 (4) FD FO. 288 Article 7 (1) FD FO. Next to these four grounds for refusal, which are explicitly mentioned in the Framework

Decision, the Decision also contains one hidden ground for refusal. This hidden ground for refusal relates to a

situation where the execution of a freezing order is impossible for practical reasons, namely, because the property or

evidence have disappeared, have been destroyed, or cannot be found in the location indicated in the certificate. In

that situation, the executing authority shall notify the issuing authority that it was not possible to execute a freezing

order, Article 7 (4) FD FO.

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criminal investigation, or where the property or evidence concerned have already been subjected

to a freezing order.289

A Framework Decision has a number of other characteristics which are typical for mutual

recognition instruments: direct communication between the issuing and the executing judicial

authority,290 short deadlines for the recognition and execution of a freezing order,291 and a

provision on legal remedies.292 In one regard this Framework Decision is different to the

Framework Decisions on the European Arrest Warrant and the European Evidence Warrant.

Namely, in the latter decisions, the object of recognition is not a domestic decision issued by the

competent judicial authority in the issuing State, but a single European form, which needs to be

filled out based on information found in a domestic decision. In the Framework Decision on

freezing orders the object of recognition is a domestic freezing order issued by a competent

judicial authority of the issuing state which needs to be accompanied by a certificate.293

The fact that evidence or property has been frozen does not necessarily mean that it will be

transferred to the issuing State. Evidence or property stays frozen in the territory of the executing

State until a request for its (confiscation and) transfer has been sent from the issuing to the

executing State. However, these subsequent requests for (confiscation and) transfer are not

regulated by mutual recognition rules, but by mutual legal assistance rules.294 This means that

mutual recognition applies only to the freezing of property or evidence, but not to their

(confiscation and) transfer to the issuing State, which are still regulated by mutual legal

assistance rules.295

289 Article 8 (1) FD FO. 290 Article 4 FD FO. 291 The decision on the recognition of a freezing order has to be taken “as soon as possible and, whenever practicable,

within 24 hours of receipt of the freezing order” (Article 5 (3) FD FO). After the freezing order has been recognized,

the executing judicial authority “shall forthwith take the necessary measures for its immediate execution” (Article 5

(1) FD FO). 292 Legal remedies may be used both, in the issuing and in the executing State. But, substantive reasons for issuing

the freezing order can be challenged only in an action brought before a court in the issuing State (Article 11 FD FO). 293 Article 9 FD FO. On certificates in mutual recognition model of cooperation, see Vermeulen, G. et al., EU cross-

border gathering and use of evidence in criminal matters, Towards mutual recognition of investigative measures and

free movement of evidence?, Maklu, Antwerpen-Apeldoorn-Portland, 2010, p. 294 Article 10 (2) FD FO. 295 Gleß, Sabine, Sicherstellung von Vermögensgegenständen oder Beweismitteln in der EU, in Sieber, Ulrich et al.

(Eds.), Europäisches Strafrecht, Nomos Verlagsgesellschaft, Baden-Baden, 2011, p. 611, Ambos, Kai,

Internationales Strafrecht, Verlag C. H. Beck, München, 2011, p. 540.

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1. 3. Implementation and use in practice

The Framework Decision was adopted on 22 July 2003. Pursuant to Article 14 (1), Member

States have to take the necessary measures in order to comply with the provisions of the

Framework Decision before the 2nd of August 2005. Therefore, Member States had more than two

years to implement the provisions of the Framework Decision into their own legal orders.

Framework Decisions are legal instruments of the pre-Lisbon third pillar of European Union law.

They do not have direct legal effect in the domestic legal orders of Member States. Pursuant to

Article 34 (2)(b) of the pre-Lisbon Treaty on the European Union, Framework Decisions are

binding on Member States as to the results to be achieved, but leave to the national authorities the

choice of form and methods in order to achieve the results indicated.

Status of implementation of the Framework Decision shows that out of 25 Member States at that

moment, only 7 of them have implemented the provisions of the Framework Decision in time.296

Today, the Framework Decision is implemented by 24 out of 28 Member States.297 The way in

which the Framework Decision has been implemented in the national legal orders of Member

States has been criticised by the Commission, who found “numerous omissions and

misinterpretations” in national provisions which implemented the provisions of the Framework

Decision.298

However, the major problem of the Framework Decision on freezing orders has not been its poor

status of implementation. Its major problem has been the fact that it has hardly been used in

practice.299 It’s seldom use in practice was a result of the complexity of the instrument. Namely,

the Framework Decision did not introduce a mutual recognition regime for the cross-border

gathering of evidence. It introduced the mutual recognition regime only for the freezing of

296 Austria, Denmark, Finland, France, Netherlands, Poland, and Sweden. For status of implementation of the

Framework Decision, see the following web page:

http://www.ejn-crimjust.europa.eu/ejn/EJN_Library_StatusOfImpByCat.aspx?CategoryId=24 (26 August 2014). 297 It has still not been implemented by Greece, Italy, Luxembourg, and the UK. For status of implementation of the

Framework Decision, see the following web page:

http://www.ejn-crimjust.europa.eu/ejn/EJN_Library_StatusOfImpByCat.aspx?CategoryId=24 (26 August 2014). 298 Report from the Commission based on Article 14 of the Council Framework Decision 2003/577/JHA of 22 July

2003 on the execution in the European Union of orders freezing property or evidence, Brussels, 22.12.2008,

COM(2008) 885 final, p. 7. 299 Replies to the questionnaire on the evaluation of the tools for judicial cooperation in criminal matters, EJN 6,

COPEN 13, Brussels, 26. 1. 2009, p. 6.

http://www.ejn-crimjust.europa.eu/ejn/EJN_Library_StatusOfImpByCat.aspx?CategoryId=24

http://www.ejn-crimjust.europa.eu/ejn/EJN_Library_StatusOfImpByCat.aspx?CategoryId=24

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evidence in the territory of another Member State. The transfer of the frozen evidence to the

territory of the issuing State was still regulated by mutual legal assistance mechanisms. This

meant that if the issuing authority used the freezing order, it still had to use a request for

assistance if it wanted the frozen evidence to be transferred to its territory. Instead of one request

for mutual legal assistance, the issuing State needed to make use of a mutual recognition

instrument and a mutual legal assistance request. In this situation, competent authorities of the

cooperating States used the mechanisms of the legal regime which existed before the Framework

Decision was adopted, mutual legal assistance regime.

This situation called for the adoption of further measures which will introduce a single legal

regime in the area of cross-border evidence gathering. A single legal regime means the

introduction of the principle of mutual recognition which will cover not only the gathering of

evidence in the executing state, but also its subsequent transfer to the issuing state.

1. 4. Preliminary conclusion

The Framework Decision on freezing orders is the first legal instrument which introduced the

principle of mutual recognition in the area of evidence. This Framework Decision has all the

characteristic features of a mutual recognition instrument. Judicial cooperation takes place

between the judicial authorities of cooperating States. It is based on the recognition of

extraterritorial effects of a decision issued by the judicial authorities of the issuing State. This

decision is recognized and executed in the executing State, while the conditions for the issuing of

an order are determined by the law of the issuing State, leaving the conditions for its enforcement

to be determined by the law of the executing State. The executing State has only very limited

possibilities to adapt the decision of the issuing State to the demands arising out of its legal order:

it has only four strictly defined grounds for refusal at its disposal.

The main shortcoming of the Framework Decision is its very limited scope of application. First

of all, the Framework Decision does not relate to all types of evidence, but only to objects,

documents, and data. Second, a Framework Decision regulates only cooperation in relation to the

freezing of evidence, and does not provide a mutual recognition legal framework for the transfer

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of evidence to the territory of the issuing State. Such a limited scope of application leads to a

Framework Decision being seldom used in practice.

This situation called for the adoption of further measures which will introduce a single legal

regime in the area of cross-border evidence gathering. A single legal regime means the

introduction of the principle of mutual recognition which will cover not only the gathering of

evidence in the executing state, but also its subsequent transfer to the issuing state. This is why

the Commission put forward a Proposal for the adoption of the European Evidence Warrant in

November 2003.

2. Framework Decision on the European Evidence Warrant

Framework Decision on Freezing Orders was adopted in July 2003, only couple of months after

its adoption, in November 2003, the Commission came out with a Proposal for the adoption of

another European Union legal instrument based on the principle of mutual recognition and

applicable in the area of cross-border evidence gathering. This new instrument was the European

Evidence Warrant.

Firstly, the reasons for the adoption of this new instrument shall be presented (2. 1.), followed by

the presentation of the basic characteristics of the Commission Proposal (2. 2.). Presentation of

the Proposal will be followed by a more detail analysis of the legal provisions of the Framework

Decision on the European Evidence Warrant (2. 3.).

2. 1. Reasons for the adoption of another mutual recognition instrument in the area of

evidence

In November 2003 the Commission put forward a Proposal for a Council Framework Decision on

the European Evidence Warrant.300 The purpose of this Proposal was to further introduce the

300 Proposal for a Council Framework Decision on the European Evidence Warrant for obtaining objects, documents

and data for use in proceedings in criminal matters, COM(2003) 688 final, 14. 11. 2003.

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principle of mutual recognition in the area of cross-border evidence gathering.301 The principle of

mutual recognition was already introduced in this area with the Framework Decision on Freezing

Orders. However, the latter instrument introduced the principle of mutual recognition, only

partially (see supra C. IV. 1. 2.-3.).

At the time when the Proposal for a Framework Decision on the European Evidence Warrant was

put forward, cross-border gathering of evidence in European Union criminal law was still to a

large extent regulated by rules pertaining to a traditional model of judicial cooperation in criminal

matters. With a Proposal for a Framework Decision on the European Evidence Warrant, the

Commission hoped to create a quicker and more effective legal regime for cross-border evidence

gathering. The creation of a more effective system of judicial cooperation in criminal matters was

needed in order to answer the challenges that were put before the European Union with the ever

growing economic integration of its Member States. The creation of such a system was in

correspondence with the European Union objective to become one single judicial area, an area of

freedom, security and justice.302

2. 2. Main characteristics of the Proposal for a Framework Decision on the European

Evidence Warrant

As explained before, the main reason for the adoption of the Framework Decision on the

European Evidence Warrant was to further introduce the principle of mutual recognition in the

area of evidence. Principle of mutual recognition should govern not only the freezing of evidence

in the territory of one Member State,303 but also its subsequent transfer to the territory of another

Member State. The way in which the Proposal aimed to achieve this objective will be explained

below, through the presentation of its scope of application (2. 2. 1.), and specifically in the

application of mutual recognition logic (2. 2. 2.).

301 Mavany, 2012, 83. 302 Mavany, 2012, 77. 303 Gleβ, Sabine, Kommentar zum Vorschlag für einen Rahmenbeschluβ über eine „Europäische Beweisanordnung“,

StV 12/2004, p. 679.

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2. 2. 1. Scope of application

The Proposal introduces a broader scope of application of the principle of mutual recognition

than the Framework Decision on Freezing Orders. The mutual recognition regime will govern not

only the gathering of evidence on the territory of the executing State, but also its subsequent

transfer to the territory of the issuing State. This means that the principle of mutual recognition

shall be applied in its entirety, to all the phases of the process of cross-border evidence gathering.

In relation to the scope of application of the principle of mutual recognition, the Proposal is

therefore broader than the Framework Decision on Freezing Orders.

However, in one regard, the Proposal has a very limited scope of application. In this regard, the

Proposal follows the path indicated by the Framework Decision on Freezing Orders. Namely, a

Framework Decision on Freezing Orders applies only to objects, documents and data which

could be used as evidence in criminal proceedings.304 Pursuant to the Proposal, the European

Evidence Warrant should also apply only to objects, documents and data.305 This means that the

amount of evidence, which might be located on the territory of another Member State, is

excluded from the scope of application of the European Evidence Warrant. In order for evidence

to come within the scope of application of the European Evidence Warrant, it needs to fulfil two

preconditions: it needs to be already existing and directly available in the executing Member

State.306 Evidence that already exists, but is not directly available without further investigation of

analysis, such as taking of evidence from a body of a person or commissioning of an expert´s

report, is excluded from the scope of application of the European Evidence Warrant. The same

applies to evidence that does not already exist, but is directly available in the executing Member

State, such as the taking of evidence in the form of interviews of suspects, witnesses, experts or

the taking of evidence in real-time.307

304 Article 2 (e) FD FO. 305 Article 1 (1) Proposal FD EEW. 306 Williams, Charles, The European Evidence Warrant: the Proposal of the European Commission, in ERA-Forum,

Special Issue: Dealing with European Evidence in Criminal Proceedings, National Practice and European Union

Policy, Trier, 2005, p. 17. 307 Proposal for a Council Framework Decision on the European Evidence Warrant for obtaining objects, documents

and data for use in proceedings in criminal matters, COM(2003) 688 final, 14. 11. 2003, p. 10.

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Such a limited scope of an application of the European Evidence Warrant shows that the further

introduction of the principle of mutual recognition in the area of cross-border evidence gathering,

which is to be achieved with the Framework Decision on the European Evidence Warrant, is still

limited. With the Framework Decision on Freezing Orders, the principle of mutual recognition

was applied only in relation to freezing, and not the transfer of evidence, and with the Framework

Decision on the European Evidence Warrant, it is to be applied only in relation to certain types of

evidence, and not all evidence that is located in the territory of the executing State. This means

that in relation to all other types of evidence, which are not included in the scope of application of

the European Evidence Warrant, mutual legal assistance shall still apply in relation to cross-

border evidence gathering.

Why did the Commission decide to propose such a limited scope of application for the European

Evidence Warrant? The Commission itself was aware of the shortcomings of such a limited scope

of application, namely, that two regimes for cross-border evidence gathering, mutual legal

assistance and mutual recognition regime, shall be applicable. The Commission was also aware

that the best solution for the whole area was the introduction of the mutual recognition regime in

its entirety. However, the Commission saw the introduction of the mutual recognition regime for

all types of evidence as an “unduly complex” mission.308 That is why the Commission decided to

apply the step-by-step approach,309 seeing the European Evidence Warrant as only the first step in

the adoption of a single instrument that shall regulate the area of cross-border evidence gathering

by rules developed upon the principles of the mutual recognition regime.310 At the end of this

process, a single instrument will be adopted, which will be applied to all types of evidence. Such

an instrument shall produce the same effects in the area of cross-border evidence gathering, that

the European Arrest Warrant produced in the area of extradition.311 In the same way that the

European Arrest Warrant replaced the extradition regime with the regime of surrender, shall a


and data for use in proceedings in criminal matters, COM(2003) 688 final, 14. 11. 2003, p. 10. 309 Williams, Charles, The European Evidence Warrant: the Proposal of the European Commission, in ERA-Forum,


Policy, Trier, 2005, p. 20. 310 De Hert, Paul, Weis, Karen, Cloosen, Nathalie, The Framework Decision of 18 December 2008 on the European

Evidence Warrant for the Purpose of Obtaining Objects, Documents and Dana for Use in Proceedings in Criminal

Matters – A Critical Assessment, New Journal of European Criminal Law – Special Edition, 2009, p. 56. 311 Proposal for a Council Framework Decision on the European Evidence Warrant for obtaining objects, documents


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single instrument be adopted to replace the mutual legal assistance regime with rules based on the

mutual recognition regime in the area of cross-border evidence gathering.

These considerations show that the European Evidence Warrant was perceived as sort of an

exercise in the introduction of the principle of mutual recognition in the area of evidence. This

exercise was expected to show the extent to which Member States are willing to accept the

principle of mutual recognition in the area of evidence. Experience gained from such an exercise

could be used as a valuable indicator for the adoption of further mutual recognition instruments in

the area of evidence.

2. 2. 2. Specificities in the application of the mutual recognition logic

The Framework Decision on Freezing Orders was an instrument which contained all the typical

mutual recognition elements. The only departure of this instrument from the characteristic mutual

recognition features is the introduction of the certificate, which needs to accompany the decision

of the issuing authority on the measure to be undertaken in the territory of the executing State in

order to secure the evidence which is located there. The Proposal for a Framework Decision on

the European Evidence Warrant abandoned the certificate, and reintroduced the approach

inaugurated by the Framework Decision on the European Arrest Warrant, whereby the object of

recognition and execution is a unified European form,312 and not a national decision accompanied

by a unified European certificate.313

However, the Proposal for a Framework Decision on the European Evidence Warrant has a

number of features which differentiate it from typical mutual recognition instruments and

represent a departure from the mutual recognition logic. These specificities in the way in which

the principle of mutual recognition is applied in the Proposal can be traced to two main reasons:

312 Williams, Charles, The European Evidence Warrant: the Proposal of the European Commission, in ERA-Forum,


Policy, Trier, 2005, p. 21. 313 Proposal for a Council Framework Decision on the European Evidence Warrant for obtaining objects, documents


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first, taking account of differences between the laws of Member States (a), and, second, taking

account of human rights considerations (b).

2. 2. 2. 1. Taking account of differences between the laws of Member States

In the mutual legal assistance model of cross-border evidence gathering, the object of the request

for assistance is the undertaking of a certain evidence gathering action on the territory of the

requested State. The type of evidence gathering action that is to be undertaken on the territory of

the requested State is chosen by the requesting State. The same attitude is characteristic for

cooperation based on the mutual recognition model. The issuing authority decides on the

evidence gathering action that is to be undertaken on the territory of the executing State.

However, the Proposal for a Framework Decision on the European Evidence Warrant takes a

different approach. The issuing authority is not ordering the undertaking of a specific evidence

gathering action on the territory of the executing State, but is ordering a specific goal to be

achieved – a specific piece of evidence to be gathered on the territory of the executing State. The

executing Member State gets to choose the specific investigative measure which will be carried

out in order to achieve the objective indicated by the issuing State.314 The Commission explained

this approach as taking account of the differences between the Member States laws and

regulations governing gathering of objects, documents and data for evidentiary purposes. By

concentrating on the objective to be achieved, rather than on the investigative measure to be

undertaken, the European Evidence Warrant enables the executing authority to adapt the evidence

gathering action to the specific needs and demands of its criminal justice system.315

The approach of the Proposal shows full respect for the legal position of the executing State.

However, this approach cannot be accepted as an approach which is in line with the mutual

recognition logic. The fundaments of the mutual recognition logic demand recognition and

execution of a domestic judicial decision of judicial authorities of the issuing State in the territory

314 Williams, Charles, The European Evidence Warrant: the Proposal of the European Commission, in ERA-Forum,


Policy, Trier, 2005, p. 21. For more on this approach, see Gleβ, StV 12/2004, p. 680. 315 Proposal for a Council Framework Decision on the European Evidence Warrant for obtaining objects, documents


99

of the executing State. In the area of cross-border evidence gathering that means that a decision

of judicial authorities of the issuing State to gather evidence is recognized and executed in the

executing State, notwithstanding the differences between the laws of the issuing and the

executing State. In the approach presented by the Proposal, judicial authorities of the issuing

State do not take a decision on the evidence gathering action to be undertaken. Therefore, that

decision is not recognized and executed in the territory of the executing State. Judicial authorities

of the issuing State decide only on the goal to be achieved, evidence to be gathered. However, a

decision on the evidence gathering action to be undertaken in order to achieve the objective

indicated is made by the judicial authorities of the executing State. This means that in the

approach presented by the Proposal, the basic premise of the mutual recognition model – the

recognition of the extra-territorial effects of the domestic decision of the issuing State – does not

apply at all.

The approach taken by the Proposal, by giving great consideration for the different legal systems

of Member States, fails to guarantee efficiency of judicial cooperation in criminal matters.

Namely, for judicial cooperation in criminal matters to be effective, there needs to be certainty

that the evidence needed will be gathered on the territory of another Member State, but there also

needs to be certainty that the evidence gathered in the territory of another State will be valid in

the criminal procedure of the requesting/issuing State. The validity of the evidence in the

requesting/issuing State depends on the way in which the evidence was gathered, primarily on the

evidence gathering action that was used to gather the evidence. In the approach presented by the

Proposal, the decision on the type of evidence gathering action is made by the authorities of the

executing State, which reduces the chances for the validity of the gathered evidence in the

criminal procedure of the issuing State.

The solution introduced by the Proposal can be seen as a compromising one. In comparison to the

mutual legal assistance model, the executing State received a more stringent obligation to assist

the criminal procedure of the issuing State. However, the stringency of that obligation is

mitigated by the possibility to adapt the demands of assistance to the needs of its own criminal

justice system through the choice of the investigative measure which is going to be undertaken on

its territory.

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2. 2. 2. 2. Taking account of human rights considerations

Commission was aware of the fact that cross-border gathering of evidence, especially if coercive

measures are required, may endanger human rights as they are guaranteed by individual Member

States. Problems for human rights protection arise out of the fact that criminal justice systems of

Member States are very different when it comes to protection of human rights in criminal

procedure. The fact that all Member States are signatories of the European Convention on Human

Rights is not enough to secure the same level of human rights protection. Human rights standards

guaranteed by the European Convention on Human Rights and developed in the jurisprudence of

the European Court for Human Rights are very broadly defined, and leave the contracting parties

a lot of discretion in their implementation in national criminal justice systems. Using this

discretion Member States have developed different laws and practices for the protection of

human rights in criminal procedure. This is why the Commission decided to propose the adoption

of specific safeguards in relation to cross-border gathering of evidence based on the European

Evidence Warrant. Two specific sets of standards were proposed, first set relating to the issuing

of the warrant, and second set relating to its execution.

In relation to the issuing of the warrant, two specific safeguards are introduced. The first

safeguard guarantees the equivalence of judicial authorities competent to issue the European

Evidence Warrant. Due to the differences in the organization of national criminal justice systems,

there is no similarity between Member States in relation to authorities which are competent to

order evidence gathering actions in the framework of national criminal procedure. In some

Member States, it is only judicial authorities, while in other Member States law enforcement

authorities may also come to be considered. These differences may present a problem when it

comes to cooperation, not only for practical, but also for legal reasons. Since evidence gathering

actions may include the use of coercion and thereby limit constitutionally guaranteed human

rights, in some Member States only courts or other judicial authorities may order the undertaking

of such actions. For these Member States, the execution of warrants coming from other Member

States where they were ordered by a law enforcement authority may present a constitutional

problem. For these reasons, the Proposal tries to establish equivalence between competent

judicial authorities by limiting the scope of authorities which may issue a European Evidence

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Warrant. It may only be the judges, investigative magistrates or prosecutors.316 The second

safeguard serves to prevent the European Evidence Warrant being used to circumvent national

safeguards on obtaining evidence.317 Due to the differences in national criminal justice systems, it

may be possible to gather evidence in the executing State, which is not possible to gather in the

issuing State, because a specific national safeguards in the issuing State, prohibits the gathering

of such evidence. For example, the gathering of evidence in the issuing State may be prohibited

because a journalistic privilege applies. However, in the executing State, no journalistic privilege

of a kind exists. In this situation, in order to prohibit the issuing State from circumventing

national safeguards in the gathering of evidence, the judicial authority issuing a European

Evidence Warrant must be satisfied that it would be able to obtain the evidence in similar

circumstances if they were on the territory of its own Member State.318 The purpose of this

safeguard is therefore to prohibit the possibility of forum shopping for the prosecuting authorities

of the issuing State.319

The Proposal sets out a number of safeguards in relation to the execution of the European

Evidence Warrant. First of all, it sets a number of general safeguards which apply to all evidence

gathering measures. The Proposal obliges the executing authority to use the least intrusive means

necessary to obtain the objects, documents and data sought.320 This means that the executing

authority needs to observe the principle of proportionality when making a decision on the

evidence gathering action to be undertaken in the execution of the European Evidence Warrant.

Another safeguard of a general character relates to the right of an individual not to incriminate

him or herself and determines that a natural person shall not be required to produce evidence

which may result in self-incrimination.321 Next to general safeguards, which apply to all evidence

316 Article 2 (c) Proposal FD EEW. 317 Proposal for a Council Framework Decision on the European Evidence Warrant for obtaining objects, documents

and data for use in proceedings in criminal matters, COM(2003) 688 final, 14. 11. 2003, p. 12. See Article 6 (b) of

the Proposal FD EEW. In order to issue an EEW, the issuing authority must not only be satisfied that the objects,

documents and data sought would be available in a similar domestic case (even though different procedural

measures might be used), it must also be satisfied that the evidence sought is necessary and proportionate for the

purpose of the proceedings in relation to which an EEW was issued (Article 6 (a) of the Proposal FD EEW), and that

the evidence sought are likely to be admissible in the proceedings in relation to which an EEW was issued (Article 6

(c) of the Proposal FD EEW). 318 Proposal for a Council Framework Decision on the European Evidence Warrant for obtaining objects, documents

and data for use in proceedings in criminal matters, COM(2003) 688 final, 14. 11. 2003, p. 12. 319 Mavany, p. 84. 320 Article 12 (1)(a) Proposal FD EEW. 321 Article 12 (1)(b) Proposal FD EEW.

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gathering actions in the executing State, also special safeguards exist, which apply only when a

search of premises and seizure is undertaken in order to execute a European Evidence Warrant.

These safeguards relate to the time when the search is undertaken and to the notification of the

search.322

Besides these explicitly regulated safeguards which relate both to the issuing and the execution of

a European Evidence Warrant, the Proposal contained other provisions which can also be seen as

human rights safeguards. Such provisions are the ones on legal remedies and provisions on the

grounds for the refusal of recognition and execution of a European Evidence Warrant.

In relation to legal remedies, the Proposal foresees an obligation for Member States to introduce

legal remedies only if coercive measures were undertaken in the execution of a European

Evidence Warrant. In situations where execution of the Warrant does not require the use of

coercive measures, Member States are not obligated to introduce legal remedies and the

protection of the rights of the persons affected by the European Evidence Warrant proceedings is

left to the standards arising out of domestic law of Member States.323 Right to legal remedy is

guaranteed not only to the suspect, but also to any other interested party, including bona fide third

parties.324 Provisions on legal remedies have a significant limitation: substantial reasons for

issuing a Warrant may only be challenged in an action brought before a court in the issuing

State.325 Legal remedies can have a suspensive effect: the executing authority may suspend the

transfer of objects, documents and data pending the outcome of a legal remedy.326

322 Relating to the time of the search of premises, the Proposal prohibits its undertaking during the night, unless that

is exceptionally necessary due to the particular circumstances of the case, Article 12 (2)(a) Proposal FD EEW.

Regarding the notification of the search, the Proposal entitles the person whose premises have been searched to

receive a written notification thereof. If that person is absent, the notification shall be left on the premises or shall be

provided by other suitable means, Article 12 (2)(b) and (c) Proposal FD EEW. 323 Proposal for a Council Framework Decision on the European Evidence Warrant for obtaining objects, documents

and data for use in proceedings in criminal matters, COM(2003) 688 final, 14. 11. 2003, p. 27. 324 Article 19 (1) Proposal FD EEW. 325 Article 19 (2) Proposal FD EEW. 326 Article 19 (6) Proposal FD EEW. However, the duration of the suspensive effect is limited: 60 days after the

execution of the European Evidence Warrant, the issuing authority may require the transfer of the gathered evidence.

In that case the evidence has to be transferred to the issuing State, notwithstanding the fact that the outcome of the

legal remedy in the executing State is still uncertain.

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The Proposal significantly reduced the number of grounds for refusal of cooperation by

recognizing only four grounds for refusal. Among these four grounds for refusal, one is of a

mandatory nature – the application of the ne bis in idem principle in relations between Member

States.327 Other grounds for refusal are of an optional character – in case they exist the executing

authority may refuse recognition and execution of a European Evidence Warrant. Optional

grounds for refusal are: ne bis in idem principle in relations between a Member State and a third

State,328 immunity and privilege under the law of the executing State,329 and double

criminality.330

Pursuant to the opinion of the Commission, the double criminality requirement is inconsistent

with mutual recognition logic and it should not be possible to refuse recognition and execution of

a Warrant on the basis of its absence. However, the Proposal does not call for the immediate

abandonment of the double criminality requirement. Instead, it calls for the narrowing of its

application and for the introduction of a transitional period in which the Member States shall

have the possibility to prepare themselves for the full abandonment of the double criminality

requirement.331 The scope of application of the double criminality requirement is narrowed by the

enlargement of the list of offences in relation to which it does not apply. Next to 32 categories of

offences which were contained in the Framework Decisions on the European Arrest Warrant and

the Freezing Orders, an additional seven categories of offences were introduced.332 Provisions of

the Proposal do not contain a requirement that the offence in relation to which a European

Evidence Warrant is issued is punishable by a penalty of a certain severity. Such a requirement

was contained in framework decisions that were adopted before the Proposal was put forward.333

For offences which are not on the list, the double criminality requirement applies only if the


and data for use in proceedings in criminal matters, COM(2003) 688 final, 14. 11. 2003, p. 24. See Article 15 (1)

Proposal FD EEW. 328 Article 15 (2)(a) Proposal FD EEW. 329 Article 15 (2)(b) Proposal FD EEW. 330 Article 16 Proposal FD EEW. 331 Proposal for a Council Framework Decision on the European Evidence Warrant for obtaining objects, documents

and data for use in proceedings in criminal matters, COM(2003) 688 final, 14. 11. 2003, p. 24. 332 Gleβ, Sabine, Kommentar zum Vorschlag für einen Rahmenbeschluβ über eine „Europäische Beweisanordnung“,

StV 12/2004, p. 681. Mavany, p. 84. 333 See, for example, Article 2 (2) of the Framework Decision on the European Arrest Warrant. Pursuant to that

provision double criminality was abandoned in relation to offences on the list, under the condition „they are

punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least

three years“.

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search of private premises is undertaken in the execution of a European Evidence Warrant.334 The

last provision represents further limitation of the application of the double criminality

requirement. In the mutual legal assistance regime, double criminality applied not only in relation

to the search of private premises, but to every search and seizure.335 However, all these

limitations are only of a transitional character. They represent an intermediate step towards the

full abandonment of the double criminality requirement. The Proposal foresees the full

abandonment of the double criminality requirement after the expiry of the five year period after

entry into force of the Framework Decision.336

2. 2. 3. Preliminary conclusion

The main purpose of the Proposal for a Framework Decision on the European Evidence Warrant

was to create a more efficient system of judicial cooperation in criminal matters in relation to

evidence. This was to be achieved with the further introduction of the principle of mutual

recognition in the area. Constructing the European Evidence Warrant as a mutual recognition

instrument, the Proposal foresees the implementation of a number of typical mutual recognition

characteristics: a reduced number of grounds for refusal, strict deadlines for the recognition and

execution of the Warrant,337 and judicialisation of cooperation.338 However, at the same time, the

Proposal shows a lot of caution with regards to the principle of mutual recognition in the area of

evidence. First of all, the scope of the application of the European Evidence Warrant is limited

only to pre-existing and directly available evidence. Second, the Proposal abandons typical

mutual recognition logic by limiting the powers of the issuing State. The issuing State is not


and data for use in proceedings in criminal matters, COM(2003) 688 final, 14. 11. 2003, p. 25. 335 See Article 5 (1)(a) CoE-MLA-1959. 336 Article 24 (2) Proposal FD EEW. The possibility to use the double criminality requirement during the transitional

period is further limited only to those Member States that have under existing instruments relating to mutual

assistance in criminal matters made execution of a request for search and seizure dependent on the condition of

double criminality. 337 Article 17 Proposal FD EEW contains a provision on deadlines for the recognition and execution of a European

Evidence Warrant, as well as for the transfer of evidence gathered in the execution of a Warrant. Pursuant to that

provision, decision on the recognition of the Warrant must be made within 10 days after the receipt of the Warrant by

the competent judicial authority of the executing State. The Warrant must be executed within 60 days of the receipt

of the Warrant by the competent executing authority. The evidence gathered must be transferred to the issuing State

within 30 days of the execution of the Warrant. 338 Pursuant to Article 7 Proposal FD EEW, EEW must be transmitted directly between the competent judicial

authorities of cooperating States.

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ordering a certain investigative action to be undertaken on the territory of the executing State, but

only orders that the evidence sought for be gathered, but the choice of the investigative measure

to be undertaken in order to achieve that goal is left to the authorities of the executing State.

Caution towards the implementation of the principle of mutual recognition in the area of evidence

is also seen in the fact that the Proposal introduces a number of safeguards for the issuing and

execution of the Warrant. Safeguards introduced by the Proposal are primarily directed at the

protection of the human rights of the persons affected by the cooperation proceedings.339

Even with such a limited scope of application and such a mitigated version of mutual recognition,

it took more than five years to convert the Proposal into a binding legal instrument. The

Framework Decision on the European Evidence Warrant was finally adopted by the Council of

the European Union on the 18th of December 2008.340 In the period preceding its adoption, the

text of the Proposal significantly changed. In the following part of the work, the provisions of the

Framework Decision on the European Evidence Warrant shall be analysed in more detail.

3. Directive on the European Investigation Order

3. 1. Adoption of a new legislative instrument on the EU level

After a long and burdensome negotiating process in the Council341 and more than five years after

the Proposal was put forward, the Framework Decision on the European Evidence Warrant was

finally adopted in December 2008. Pursuant to Article 23(1) of the Framework Decision, the

Member States were under an obligation to implement its provisions by the 19th of January 2011.

In this situation, it was normal to expect that the European Union would not take further

339 De Hert, Paul, Weis, Karen, Cloosen, Nathalie, The Framework Decision of 18 December 2008 on the European

Evidence Warrant for the Purpose of Obtaining Objects, Documents and Dana for Use in Proceedings in Criminal

Matters – A Critical Assessment, New Journal of European Criminal Law – Special Edition, 2009, p. 58. 340 Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence warrant for the

purpose of obtaining objects, documents and data for use in proceedings in criminal matters, OJ L 350, p. 72- 92. 341 Bachmaier Winter, Lorena, European Investigation Order for Obtaining Evidence in the Criminal Proceedings,

Study of the Proposal for a European Directive, Zeitschrift für Internationale Strafrechtsdogmatik, 9/2010, p. 583,

Zimmermann, Frank; Glaser, Sanja; Motz, Andreas, Mutual Recognition and its Implications for the Gathering of

Evidence in Criminal proceedings: a Critical Analysis of the Initiative for a European Investigation Order, European

Criminal Law Review, 1/2011, p. 66.

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legislative action in the area before it had a chance to see how the new instrument, which

introduced the principle of mutual recognition in the area of evidence, functions in practice.342

Hardly any experience in that regard could have been had from the Framework Decision on

Freezing Orders. Namely, although this instrument was adopted back in 2003, it was hardly used

in practice343 due to it not having been implemented by all Member States.344 However, the

reality took a different course, and before any experience could have been gained from the

practical functioning of the European Evidence Warrant, initiatives for the adoption of a new

legislative instrument appeared on the horizon.

The first traces of this new development are to be found in the Commission Communication

published in June 2009, in which it states; “An Area of Freedom, Security and Justice Serving the

Citizen”. This came only several months after the Framework Decision on the European

Evidence Warrant was adopted. In the document, the Commission called for the establishment of

a “comprehensive system for obtaining evidence in cross-border cases” through the adoption of a

“real European evidence warrant (emphasis added) to replace all the existing legal

instruments.”345 Therefore, the Commission called for the adoption of a single legal instrument

that will replace all the existing instruments in the area, including both Framework Decisions that

introduced the principle of mutual recognition in the area of evidence.

Following the path announced in the Communication, in November 2009 the European

Commission published the Green Paper on obtaining evidence in criminal matters from one

Member State to another and securing its admissibility. The aim of the Green Paper was to

consult Member States and all other concerned stakeholders on a number of issues that were of

342 In the same sense, see Ambos, Kai, Transnationale Beweiserlangung – 10 Thesen zum Grünbuch der EU

Kommission „Erlangung verwertbarer Beweise in Strafsachen aus einem anderen Mitgliedstaat“, Zeitschrift für

Internationale Strafrechtsdogmatik, 9/2010, p. 559, Zimmermann et al., 2011, p. 70. For an opposite opinion, see

Bachmaier Winter, 2010, p. 588. 343 Replies to the questionnaire on the evaluation of the tools for judicial cooperation in criminal matters, EJN 6,

COPEN 13, Brussels, 26. 1. 2009, p. 6. 344 Pursuant to Article 14 (1) of the Framework Decision, Member States were in an obligation to implement its

provisions by 2 August 2005. At the end of 2008, the Framework Decision has still not been implemented by six of

the then 28 Member States – Cyprus, Greece, Italy, Luxembourg, Portugal and United Kingdom. In the meantime,

Framework Decision has been implemented by Cyprus and Portugal and by the new Member State Croatia. For the

status of implementation of the Framework Decision on Freezing Orders, see

http://www.ejnforum.eu/status_table.php?instrument=1060 (20 May 2014). 345 Communication from the Commission to the European Parliament and the Council, An Area of Freedom, Security

and Justice Serving the Citizen, Brussels, 10. 6. 2009, COM (2009) 262/4, p. 17.

http://www.ejnforum.eu/status_table.php?instrument=1060

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relevance in the area of evidence among other things.346 Firstly, they looked at the possibility of

replacing the existing legal regime on obtaining evidence in criminal matters by a single

instrument based on the principle of mutual recognition and covering all types of evidence.347

The Stockholm programme, which provided a road map for European Union action in the area of

freedom, security and justice for the five year period between 2010 and 2014,348 were adopted by

the European Council in December 2009. Point 3. 1. 1. foresaw the adoption of a new European

Union legislative instrument in the area of evidence. The European Council, after having found

that “[t]he existing instruments in this area constitute a fragmentary regime”, called for “the

setting up of a comprehensive system for obtaining evidence in cases with a cross-border

dimension, based on the principle of mutual recognition […] but also taking into account the

flexibility of the traditional system of mutual legal assistance”. The European Council went on

and invited the Commission to “propose a comprehensive system […] to replace all the existing

instruments in this area”, including the Framework Decision on the European Evidence Warrant,

“covering as far as possible all types of evidence and containing deadlines for enforcement and

limiting as far as possible the grounds for refusal”.

The content of the documents presented shows that both the Commission and the Council, after

several years of work dedicated to the introduction of the principle of mutual recognition in the

area of evidence and after two legislative instruments – the Framework Decision on Freezing

Orders and the Framework Decision on the European Evidence Warrant – adopted, were not

satisfied with the legal regime thus created. Their dissatisfaction can be traced back to one basic

cause – the complexity and fragmentariness of the legal framework for cross-border gathering of

evidence in the EU.

The legal framework of a mutual legal assistance regime was itself very complex, based on a

number of legal instruments adopted at the regional, Council of Europe, and EU level. In order to

346 Green Paper on Obtaining Evidence from One Member State to Another and Securing its Admissibility, Brussels,

11. 11. 2009, COM (2009) 624 final, p. 2. 347 Green Paper on Obtaining Evidence from One Member State to Another and Securing its Admissibility, Brussels,

11. 11. 2009, COM (2009) 624 final, p. 6. 348 The Stockholm Programme – An Open and Secure Europe Serving and Protecting Citizens, OJ C 115, 4. 5. 2010,

p. 1-38.

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properly comprehend the mutual legal assistance framework, it was also necessary to take into

account, next to the rules of international agreements, the provisions of each Member State’s

national rules on judicial cooperation in criminal matters. The introduction of the principle of

mutual recognition was expected to bring necessary simplification to the legal framework, but

exactly the opposite happened - instruments of mutual recognition adopted in the area created

even more complexity in addition to its fragmentary regime. Instruments of mutual recognition

did not replace the existing instruments of mutual legal assistance, but created a system of

coexistence of mutual legal assistance and mutual recognition instruments.

First of all, both, the Framework Decision on Freezing Orders and the Framework Decision on

the European Evidence Warrant have limited scope of application. A Framework Decision on

Freezing Orders covers only provisional measures the purpose of which is to prevent the

destruction, transformation, moving, transfer or disposal of evidence,349 but does not cover the

potential subsequent transfer of the frozen evidence to the issuing State. If the issuing authority

wants to have the frozen evidence transferred to the issuing State, it has to make use of the

mechanisms of mutual legal assistance.350 On the other hand, the Framework Decision on the

European Evidence Warrant does not cover all types of evidence. It covers only the evidence that

already exists and is directly available in the executing State, thus excluding a broad range of

evidence from its scope of application.351 In order to gather the evidence which falls outside of

European Evidence Warrant’s scope of application, the issuing authority still has to make use the

traditional mechanisms of mutual legal assistance.

Second, even when the measure or evidence sought comes within the scope of their application,

they do not oblige the competent authorities of Member States to use the mechanisms provided

by them. Rather, they leave open the possibility for competent national authorities to still use the

mechanisms of mutual legal assistance, although corresponding mechanisms of mutual

recognition are also put at their disposal. A provision which would oblige the competent

349 Article 2(c) of the Framework Decision on Freezing Orders, see also De Hert, Paul, Weis, Karen, Cloosen,

Nathalie, The Framework Decision of 18 December 2008 on the European Evidence Warrant for the Purpose of

Obtaining Objects, Documents and Dana for Use in Proceedings in Criminal Matters – A Critical Assessment, New

Journal of European Criminal Law – Special Edition, 2009, p. 56. 350 Article 10(2) of the Framework Decision on Freezing Orders. 351 For types of evidence that are explicitly excluded from the scope of application of the European Evidence

Warrant, see Article 4(2) of the Framework Decision on the European Evidence Warrant.

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authorities of Member States to use the freezing order instead of a corresponding mechanism of

mutual legal assistance is not to be found in the Framework Decision on Freezing Orders. On the

other hand, a Framework Decision on the European Evidence Warrant explicitly authorises

competent national authorities to use the mechanisms of mutual legal assistance, even though the

evidence sought falls within its scope of application, if the objects, documents and data sought

“form part of a wider request for assistance or if the issuing authority considers in the specific

case that this would facilitate cooperation with the executing State”.352

Following the political mandate given to it by the European Council in the Stockholm

programme, in the Action Plan implementing it, the European Commission announced the launch

of a “[l]egislative proposal on a comprehensive regime on obtaining evidence in criminal matters

based on the principle of mutual recognition and covering all types of evidence” for the year

2011.353 However, before the European Commission had a chance to put its proposal forward,

eight Member States came out with an Initiative for the Adoption of a Directive Regarding the

European Investigation Order in Criminal Matters.354 355

3. 2. Initiative for a Directive on the European Investigation Order – Starting from Scratch

Reasons by which Member States were led to propose the adoption of a new European Union

legislative instrument in the area of evidence are clearly stated in the documents which

accompany their Initiative – its Explanatory Memorandum356 and the Detailed Statement.357 In

352 Article 21(3) of the Framework Decision on the European Evidence Warrant. 353 Communication from the Commission to the European Parliament, the Council, the European Economic and

Social Committee and the Committee of the Regions, Delivering an area of freedom, security and justice for Europe's

citizens, Action Plan Implementing the Stockholm programme, Brussels, 20. 4. 2010, COM (2010) 171 final, p. 18. 354 Initiative of the Kingdom of Belgium, the Republic of Bulgaria, the Republic of Estonia, the Kingdom of Spain,

the Grand Duchy of Luxembourg, the Republic of Austria, the Republic of Slovenia and the Kingdom of Sweden for

a Directive of the European Parliament and of the Council Regarding the European Investigation Order in Criminal

Matters, COPEN 115, CODEC 363, EUROJUST 47, EJN 12, Brussels, 29. 4. 2010 (further on: Initiative). 355 Zimmermann et al., 2011, p. 70. 356 Initiative of the Kingdom of Belgium, the Republic of Bulgaria, the Republic of Estonia, the Kingdom of Spain,

the Republic of Austria, the Republic of Slovenia and the Kingdom of Sweden for a Directive of the European

Parliament and of the Council regarding the European Investigation Order in criminal matters, Explanatory

Memorandum, COPEN 117, EUROJUST 49, EJN 13, PARLNAT 13, CODEC 384, Brussels, 3. 6. 2010 (further on:

Explanatory Memorandum). 357 Initiative of the Kingdom of Belgium, the Republic of Bulgaria, the Republic of Estonia, the Kingdom of Spain,

the Republic of Austria, the Republic of Slovenia and the Kingdom of Sweden for a Directive of the European

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order to clear up the mess that has been created in relation to the legal framework which governs

the gathering of evidence within the EU, Member States have proposed the adoption of a single

legal instrument – Directive on the European Investigation Order – which is to replace all the

existing instruments in the area, both those pertaining to mutual legal assistance, as well as those

pertaining to a mutual recognition regime.358 The replacement of a complex and fragmentary

regime with a single legal instrument will not only simplify the work of competent authorities of

Member States and the overall procedures for cross-border evidence gathering, but will also

contribute to legal certainty in the area.359

However, the advantages of the proposed instrument are not exhausted in the creation of a single

legal instrument to govern the whole area of cross-border evidence gathering. Additionally, the

new instrument will bring a number of novelties compared to the existing mutual recognition

instruments in the area. The most important novelties are the following four: general scope of

application (3. 2. 1.), orientation towards the measure to be executed, and not towards the

evidence to be collected (3. 2. 2.), radical limitation of the grounds for refusal (3. 2. 3.), removal

of the complex provisions in the existing mutual recognition instruments (3. 2. 4.), and

combining mutual recognition with mutual legal assistance (3. 2. 5.).

3. 2. 1. General scope of application

As previously explained, the main reason for the adoption of a Directive on the European

Investigation Order was the wish to bring an end to the complexity and fragmentariness of the

legal framework for cross-border gathering of evidence in the European Union. Such an

unsatisfying legal regime was created by mutual recognition instruments which were introduced

Parliament and of the Council regarding the European Investigation Order in criminal matters, Detailed Statement,

COPEN 117, EUROJUST 49, EJN 13, PARLNAT 13, CODEC 384, Brussels, 23. 6. 2010 (further on: Detailed

Statement). 358 In the Detailed Statement, Member States considered and analysed four possible policy options: option A – No

new action to be taken in the European Union, option B – Adoption of non-legislative measures, option C –

Abrogation of the Framework Decision on the European Evidence Warrant (back to mutual legal assistance), and

option D – New legislative action to be taken at the European Union level. All the options have been analysed with

reference to their impact on economic, social and fundamental rights. Following the evaluation given in the Detailed

Statement, Member States concluded that the last option was the most adequate way to move forward in the area of

evidence. See Detailed Statement, p. 22-36. 359 Detailed Statement, p. 8.

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in the area, more precisely, by their limited scope of application. This is why the broadening of

the scope of application of mutual recognition instruments was presented as one of the major

ways of overcoming the inconsistency of the legal framework. Instead of a limited scope of

application, which was characteristic both for the Framework Decision on Freezing Orders and

the Framework Decision on the European Evidence Warrant, the European Investigation Order

should have a general scope of application.360 This means that the undertaking of any

investigative measure on the territory of the executing State can be ordered by the issuing

authority. In other words, it means that the European Investigation Order may cover any

investigative measure aiming at obtaining evidence.361

However, individual investigative measures are explicitly excluded from the scope of application

of the European Investigation Order – the setting up of a Joint Investigation Team and the

gathering of evidence within a Joint Investigation Team362 along with some types of

telecommunications interception.363

The fact that the European Investigation Order covers all investigative measures does not mean

that the same rules are applied for all these measures in the context of cross-border evidence

gathering. The Initiative for the European Investigation Order established two regimes: a general

one, which applies to all investigative measures and a special one, which is applied only to

specific measures that require additional rules, such as the temporary transfer of persons, a

hearing by video or telephone conference and investigative measures that imply the gathering of

evidence in real time, continuously and over a certain period of time. The special regime is in two

ways different than the general regime: first of all, it provides more details than the general

regime, and second, it provides some derogation from the general regime by introducing

additional grounds for refusal.364

360 „[T]he main problem of the EEW is that its scope was far too limited. A totally generalized scope of application

would be the ideal solution for simplification purposes“, Detailed Statement, p. 20. 361 Article 3(1) of the Initiative. See also Explanatory Memorandum, p. 5. 362 Article 3(2)(a) of the Initiative. “As for the obtaining of evidence within the team, the added value of the JIT is

precisely that evidence freely circulates within the team which means that there is no need for an EIO among its

members”, Explanatory Memorandum, p. 5. 363 Article 3(2)(b) and (c) of the Initiative. “These concern interception of satellite telecommunications as well as

interception of telecommunications with immediate transmission to the requesting State”, Explanatory

Memorandum, p. 5-6. 364 See Explanatory Memorandum, p. 17.

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3. 2. 2. Orientation towards the measure to be executed, and not to the evidence to be

collected

In the mutual legal assistance regime, the requesting State asks the requested State to undertake

certain investigative measures on the territory of the latter for the purposes of criminal procedures

that are under way in the former. Letters rogatory are, therefore, oriented towards the

investigative measure to be undertaken. Framework Decision on the European Evidence Warrant

took a different approach – the European Evidence Warrant is not oriented towards the measure

to be undertaken on the territory of the executing State, but towards a piece of evidence that is to

be collected there. The executing State decides on the measure to be undertaken in order to

achieve the objective indicated by the issuing State. This approach takes full account of the legal

position of the executing State. However, it has been criticized, firstly because it is believed that

it leaves the choice of the measure to be undertaken to the authority that does not have enough

knowledge of the case in order to evaluate correctly the best choice to be made.365 Secondly, on

the side of the issuing authority, it presupposes that it is able to describe in detail the piece of

evidence it is searching for.366 For these reasons, the Initiative for a European Investigation Order

foresaw the reinstitution of the approach characteristic of the mutual legal assistance regime –

orientation towards the measure to be executed, and not towards the evidence to be collected.

Therefore, it is the issuing, and not the executing authority, which decides on the investigative

measure to be undertaken on the territory of the executing State. However, the Initiative also

introduced some flexibility in this area, by allowing the executing authority to have recourse to a

different type of investigative measure under certain conditions.367 Although the issuing authority

decides about the investigative measure to be undertaken on the territory of the executing State,

the Initiative did not provide any additional safeguards which the issuing authority needs to

observe when deciding about the issuing of the European Investigation Order. This can be seen

from the fact that the Initiative does not contain an obligation for the issuing authority to check

the legality, proportionality, admissibility and necessity of the evidence prior to the issuing of the 365 See Detailed Statement, p. 16. 366 See Detailed Statement, p. 13. 367 There are three situations in which the executing authority may have recourse to a different type of investigative

measure: where the investigative measure provided for in the EIO does not exist under the law of the executing State,

where the investigative measure provided in the EIO exists in the law of the executing State but its use is restricted to

a list or category of offences which does not include the offence covered by the EIO, and where the investigative

measure chosen by the executing authority will have the same result as the measure provided for in the EIO, but by

less coercive means. See Article 9 of the Initiative.

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European Investigation Order.368 Such an obligation for the issuing authority was prescribed in

Article 7 of the Framework Decision on the European Evidence Warrant.

3. 2. 3. Radical limitation of grounds for refusal

Generally speaking, one of the main advantages of the mutual recognition regime, when

compared with the mutual legal assistance regime, is a limited number of grounds for refusal.

However, instead of limiting the grounds for refusal, the Framework Decision on the European

Evidence Warrant introduced a lengthy list of grounds for refusal, laying down seven of them.369

This lengthy list of grounds for refusal was seen as one of the added complexities of the

instrument.370 In order to overcome this added complexity, the drafters of the Initiative for a

European Investigation Order announced a “radical limitation of grounds for refusal”.371 In

accordance with this, the Initiative foresaw only four grounds for refusal: immunity or privilege

under the law of the executing State, the execution of the European Investigation Order would

harm essential national security interests of the executing State, absence of an alternative measure

when the measure indicated in the Order is not available under the law of the executing State, or

when the European Investigation Order relates to proceedings which are not criminal, but

administrative proceedings with a criminal dimension.372 The most striking feature of this list is

the absolute abandonment of the double criminality requirement.373 Pursuant to the Initiative, the

absence of double criminality was no longer to be grounds for refusal, even if the measure

indicated in the EIO relates to the search or seizure of property.

3. 2. 4. Removal of the complex provisions in the existing mutual recognition instruments

Besides a lengthy list of grounds for refusal, the Framework Decision on the European Evidence

Warrant had two other features, which were seen as adding unnecessary complexity to the

368 Bachmaier Winter, 2010, p. 583. 369 See Article 13 of the Framework Decision on the European Evidence Warrant. 370 Explanatory Memorandum, p. 11. 371 Detailed Statement, p. 19. 372 Article 10(1) of the Initiative. 373 Bachmaier Winter, 2010, p. 584.

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existing legal regime for cross-border evidence gathering in the European Union. Pursuant to the

drafters of the Initiative for a European Investigation Order, these features have made the mutual

recognition regime for cross-border gathering of evidence more complicated than the mutual

legal assistance regime. While the mutual legal assistance regime was characterized by its

flexibility, these features have made the European Evidence Warrant formalistic and rigid.374 The

first feature is the validation procedure, and the second one is the introduction of the grounds for

refusal which relates to territoriality.

The validation procedure was introduced by the Framework Decision on the European Evidence

Warrant in order to ensure equivalence between the competent authorities of the issuing and the

executing State375 and it is in conformity with the objective of making the procedure for cross-

border gathering of evidence fully judiciarised. However, it also added a supplementary

procedural step in some Member States where the judicial authorities’ stricto sensu are not

necessarily competent at the stage of gathering of evidence.376 Adding a supplementary

procedural step in the issuing State can have detrimental effects for the efficiency of the

procedure for cross-border evidence gathering. This is why the drafters of the Initiative have

opted for the abandonment of the validation procedure.

Among the grounds for refusal of cooperation which were foreseen in the Framework Decision

on the European Evidence Warrant, grounds for refusal which relate to the application of the

principle of territoriality also found its place.377 Grounds for refusal belonged to the extradition

system and were no longer applicable in the mutual legal assistance regime for obtaining

evidence.378 Therefore, in this sense the Framework Decision on the European Evidence Warrant,

compared to the mutual legal assistance regime, presented a “degree of regress”.379 The drafters

of the Initiative for the European Investigation Order considered it necessary to return to the

position which existed before the Framework Decision on the European Evidence Warrant was

374 Detailed Statement, p. 15. 375 See Article 11(4) and (5) of the Framework Decision on the European Evidence Warrant. 376 Detailed Statement, p. 15. 377 See Article 13(1)(f) of the Framework Decision on the European Evidence Warrant. 378 Detailed Statement, p. 6. 379 Detailed Statement, p. 32.

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adopted and therefore to leave out of the Initiative grounds for refusal which relates to the

application of the principle of territoriality.

3. 2. 5. Combining mutual recognition and mutual legal assistance

Unlike the European Arrest Warrant, which has repeatedly been praised by the European

Commission as a success story,380 the same can no longer be said for the Framework Decision on

Freezing Orders and Framework Decision on the European Evidence Warrant, the instruments

that have introduced the principle of mutual recognition in the area of evidence.

The Framework Decision on the European Arrest Warrant has been implemented by all Member

States, and despite some shortcomings,381 it has proved to be functional in practice.382 On the

other hand, the Framework Decision on Freezing Orders has not been implemented by all

Member States and it is hardly used in practice. The same is even truer for the Framework

Decision on the European Evidence Warrant, which has been implemented only by five Member

States383. Even more so, the institutions of the European Union renounced it even before it had an

380 See Report from the Commission to the European Parliament and the Council on the implementation since 2007

of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures

between Member States, COPEN 81, EUROJUST 57, EJN 45, Brussels, 13. 4. 2011, p. 3, 5. The same was stated

also in earlier reports on the implementation of the European Arrest Warrant Framework Decision, see Report from

the Commission based on Article 34 of the Council Framework Decision of 13 June 2002 on the European arrest

warrant and the surrender procedures between Member States, Brussels, 23. 2. 2005, COM (2005) 63 final, p. 7, and

the Report from the Commission based on Article 34 of the Council Framework Decision of 13 June 2002 on the

European arrest warrant and the surrender procedures between Member States (revised version), Brussels, 24. 1.

2006, COM (2006) 8 final, p. 7. 381 The European Arrest Warrant has primarily been criticized for its effect on fundamental rights, especially the

issue of proportionality. Additionally, it has also been criticized for the discrepancies in the implementation of the

Framework Decision in different Member States. See Report from the Commission to the European Parliament and

the Council on the implementation since 2007 of the Council Framework Decision of 13 June 2002 on the European

arrest warrant and the surrender procedures between Member States, COPEN 81, EUROJUST 57, EJN 45, Brussels,

13. 4. 2011, p. 3 and further. 382 Between 2005 and 2009 more than 54000 of European Arrest Warrants have been issued, and more than 11000

executed throughout the European Union. In the traditional extradition system, it took in average one year from the

sending of the request for extradition until the actual act of extradition of the requested person. European Arrest

Warrant scheme significantly shortened the time needed to surrender the requested person: in the case of consent of

the requested person to the surrender, the procedure lasts in average from 14 to 17 days, and when there is no consent

of the requested person it lasts in average 48 days, Report from the Commission to the European Parliament and the

Council on the implementation since 2007 of the Council Framework Decision of 13 June 2002 on the European

arrest warrant and the surrender procedures between Member States, COPEN 81, EUROJUST 57, EJN 45, Brussels,

13. 4. 2011, p. 3. 383 Croatia, Denmark, Finland, the Netherlands and Slovenia. For the status of implementation of the Framework

Decision on the European Evidence Warrant, see http://www.ejnforum.eu/status_table.php?instrument=1363 (20

May 2014).

http://www.ejnforum.eu/status_table.php?instrument=1363

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opportunity to prove itself in practice by advocating for its replacement with a new legislative

instrument.

The differences between the effects that the introduction of the principle of mutual recognition

has created in the area of extradition, on the one hand, and in the area of evidence, on the other,

necessitate an explanation. Why has the introduction of the principle of mutual recognition in the

area of extradition been a success story, while its introduction in the area of evidence has been a

total failure? This phenomenon can be explained for two reasons. The first one is the difference

in the way in which the principle of mutual recognition has been applied in the area of

extradition, and secondly in the area of evidence. The second reason relates to the differences

between the areas themselves and the very appropriateness of the application of the principle of

mutual recognition in them.

Regarding the way in which the principle of mutual recognition has been applied in these areas,

the following can be said. In the area of extradition, the Framework Decision on the European

Arrest Warrant has replaced all the existing legal instruments that have governed extradition

between the Member States of the EU before the Framework Decision became applicable. The

Framework Decision on the European Arrest Warrant created a new legal framework by

replacing the existing legal framework in its entirety. However, in the area of evidence,

instruments that have introduced the principle of mutual recognition did not replace the existing

legal regime. Instead, they created a system of coexistence of mutual legal assistance and mutual

recognition instruments. This coexistence unnecessarily added additional complexity to the

already complex legal framework and made legal situations even less certain.

Regarding the appropriateness of the application of the principle of mutual recognition in the two

areas, it can be concluded that the principle of mutual recognition was more adaptive to its

application in the area of extradition, than in the area of evidence. National arrest warrants, in the

same way as a final judgment of a national court, can be seen as a “finished product”, which can

be easily detached from the context of the national criminal procedural system in which it was

issued and become a free-movable item in the single European area of freedom, security and

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justice.384 On the other hand, national decisions to gather evidence is not a “finished product”,

which can be as easily detached from the national procedural system in which it was issued.385 A

decision to gather the evidence is inextricably connected with the rules on the use of evidence in

national criminal procedure. Rules on the gathering and the use of evidence in national criminal

procedure present a very elaborate and complex system, which is characterized by a fine

balancing between the interests of the effective investigation of crime and the interests of the

protection of the individual from the unnecessary interference of the government into his or her

rights and freedoms. Since these rules differ significantly between different Member States,

entrance of a foreign decision into the system threatens to disturb its balance and disrupt its

coherence. Such a danger can be easily avoided in judicial cooperation which is based on the

mutual legal assistance regime, where the requested State has broad possibilities to adapt the

decision emanating from the judicial system of the requesting State to its procedural standards,

but the same cannot be achieved in the judicial cooperation which is based on the mutual

recognition paradigm, where the foreign decision must, in principle, be recognized and executed

as such in the legal order of the executing State.

Having in mind the problems which the introduction of the principle of mutual recognition in the

area of evidence has brought about during the negotiation and adoption of previous instruments,

the drafters of the Initiative for a Directive regarding the European Investigation Order have

opted for a different approach – an approach in which the characteristics of the mutual

recognition system shall be combined with the flexibility of the mutual legal assistance regime.386

Flexibility of the mutual legal assistance regime was primarily to be safeguarded in relation to the

most sensitive measures. In order to do so, the Initiative foresaw the creation of two regimes for

cross-border evidence gathering within a single legal instrument. The first regime was the general

one, which applies to all the investigative measures, and the second regime is the special one

which applies to the most sensitive measures, such as hearing by videoconference or interception

of telecommunications. Within the general regime, mutual recognition rules apply, but legal rules

384 Roger, Benjamin, Europäisierung des Strafverfahrens – oder nur der Strafverfolgung? Zum Rahmenbeschluss

über die Europäische Beweisanordnung, Goltdammer's Archiv für Strafrecht, 2010, p. 31. 385 In the same sense, but in relation to evidence, and not the national decision to gather evidence, see Gleβ, Sabine,

Zum Prinzip der gegenseitigen Anerkennung, Zeitschrift für die gesamte Strafrechtswissenschaft, 2004, p. 364-366,

Đurđević, Zlata, Lisabonski ugovor: prekretnica u razvoju kaznenog prava u Europi, Hrvatski ljetopis za kazneno

pravo i praksu, 2008, p. 1091-1092. 386 Detailed Statement, p. 19.

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which govern the special regime are to a great extent overtaken by the existing mutual legal

assistance instruments, principally the European Union Convention on Mutual Assistance in

Criminal Matters.387 Rules of the general regime also apply to the special regime, but next to the

rules of the general regime the special regime contains additional rules. These additional rules

provided more details than the general regime, but also foresaw derogations from the general

regime by introducing additional grounds for refusal.388 This shows a shift in approach to mutual

recognition in the area of evidence as mutual recognition is no longer exclusively seen as an

alternative to mutual legal assistance. Thus, the proper solution might well be found in the

combination of mutual recognition and mutual legal assistance.389


The purpose of the Initiative was to adopt an instrument which would bring an end to the

fragmentariness and complexity of the legal regime on cross-border evidence gathering in the

EU. This new instrument is going to be based on the principle of mutual recognition and is going

to apply to all evidence gathering actions.

In relation to the way in which the principle of mutual recognition is going to be applied, the

Initiative will bring many changes in comparison to the Framework Decision on the European

Evidence Warrant. As previously shown, the Framework Decision on the European Evidence

Warrant introduced a “mitigated version” of mutual recognition. The Initiative foresaw stronger

implementation of mutual recognition elements in the area of evidence. This is seen primarily

387 In accordance with that, the following provisions of the Initiative have been based on the following provisions of

the European Union Convention on Mutual Assistance in Criminal Matters: Article 20 – Temporary transfer to the

executing State of persons held in custody for purpose of investigation (Article 9 EU-MLA-2000); Article 21 –

Hearing by videoconference (Article 10 EU-MLA-2000); Article 22 – Hearing by telephone conference (Article 11

EU-MLA-2000); Article 26 – Controlled deliveries (Article 12 EU-MLA-2000); and Article 27 – Investigative

measures implying gathering of evidence in real time, continuously and over a certain period of time (Title III EU-

MLA-2000). Provisions which govern cooperation in relation to the banking sector (Article 23-25) are based on the

provisions of Article 1-3 of the Protocol to the EU-MLA-2000. Provision of Article 19 which regulates temporary

transfer to the issuing State of persons held in custody for the purpose of investigation is based on Article 11 CoE-

MLA-1959. See Explanatory Memorandum, p. 17-30. 388 Explanatory Memorandum, p. 17. 389 Ruggeri, Stefano, Introduction to the Proposal of a European Investigation Order: Due Process Concerns and

Open Issues, in Ruggeri, Stefano (ed.), Transnational Evidence and Multicultural Inquiries in Europe, Springer,

2014, p. 9.

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from the fact that the issuing authority is ordering a certain investigative measure to be

undertaken on the territory of the executing State, as well as from “radical limitation” of grounds

for refusal and removal of some complex provisions which found their place in the Framework

Decision on the European Evidence Warrant, such as, the validation procedure.

Although proposing a stronger mutual recognition approach, the Initiative is also characterised by

safeguarding the mutual legal assistance regime for certain sensitive investigative measures.

Although in a single instrument, the Initiative proposes the creation of two legal regimes for

cross-border evidence gathering. The general regime is the mutual recognition regime, but for

certain investigative measures the mutual legal assistance regime still applies.

3. 3. Criticism of the Initiative

The Initiative for a Directive on the European Investigation Order has been mostly welcomed in

its goal of setting up a single and comprehensive legal regime for the cross-border gathering of

evidence in the EU.390 The unification of legal regimes for transnational evidence gathering in the

EU “simplifies the judicial cooperation”,391 and in that sense it must be welcomed as “a

reasonable step.”392 However, the welcome period was short lived as the Initiative stopped at this

point followed by a series of criticism. Objections to the Initiative can be divided into two

groups: remarks of a general character and individual remarks.

At the level of general remarks, the Initiative has been criticised for being premature. Prematurity

of the Initiative derives from two different sets of reasons. On the one side, its prematurity

derives from the fact that there has been no opportunity to see how the EEW will function in

practice.393 Namely, the practical application of the EEW could have given useful knowledge on

the functioning of the principle of mutual recognition in the area of evidence. Such knowledge

could have been used in the process of drafting a new mutual recognition instrument in the area

390 Bachmaier Winter, 2010, p. 586, Peers, Steve, Statewatch Analysis, The Proposed European Investigation Order,

Assault on Human Rights and National Sovereignty, 2010, http://www.statewatch.org/analyses/no-96-european-

investigation-order.pdf (2 June 2014), p. 1, Zimmermann et al, 2011, p. 70. 391 Bachmaier Winter, 2010, p. 586. 392 Zimmermann et al., 2011, p. 70. 393 Zimmermann et al., 2011, p. 70.

http://www.statewatch.org/analyses/no-96-european-investigation-order.pdf


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of evidence. Since the Initiative for an EIO has been put forward even before the deadline for the

implementation of the FD EEW has expired, no such knowledge could have been obtained and

used. On the other side, EIO has also been criticised as premature because of the specific

problems related to the introduction of the principle of mutual recognition in the area of evidence.

In the absence of harmonization of national substantive and procedural criminal laws, the

principle of mutual recognition, with its specific features, undermines the position of the

individual in transnational criminal proceedings, by always giving precedence to the legal order

with stricter substantive criminal law and less strict procedural criminal law requirements for

coercive investigative measures.394 These problems can only be overcome by harmonization of

Member States’ laws. Therefore, the introduction of the principle of mutual recognition in the

area of evidence should be postponed until an adequate level of harmonization of national

criminal, both substantive and procedural, laws has been achieved. Since the harmonization of

substantive criminal laws has not reached an adequate level and since there has been almost no

harmonization of national criminal procedural laws, an instrument such as the EIO, which

comprehensively introduces the principle of mutual recognition in the area of evidence, is

premature.395

Next to the remarks of a general character, a number of objections to the individual provisions of

the Initiative for an EIO have been raised. The Initiative has been criticised for having too broad

a scope of application – its scope of application covers not only criminal proceedings in a narrow

sense,396 but also proceedings brought by administrative or judicial authorities in respect of acts

which are punishable under the national law of the issuing State by virtue of being infringements

of the rule of law.397 This means that even minor wrongdoings can give rise to transnational

investigative measures, which is seen as problematic from the point of view of the principle of

proportionality.398 The Initiative was also criticised for leaving open the possibility of forum-

shopping, namely, the possibility for the issuing State to bypass its own individual rights

guarantees by sending an EIO to a Member State where evidence gathering rules are less strict

394 Zimmermann et al., 2011, p. 76. 395 Zimmermann et al., 2011, p. 80. 396 See Article 4(a) of the Initiative. 397 See Article 4(b) and (c) of the Initiative. 398 Zimmermann et al., 2011, p. 71.

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than in its own legal order.399 The Initiative left this possibility open by not introducing the

obligation for the issuing authority, found in Article 7(b) of the FD on the EEW, to ensure that

the warrant/order is issued only when the issuing authority is satisfied that the objects, documents

or data can be obtained under the law of the issuing State in a comparable case if they were

available on the territory of the issuing State, even though different procedural measures might be

used.400 Furthermore, the Initiative has also been objected to for not requiring an EIO to be

authorized by a judge in the issuing State.401 In the legal order of many EU Member States, the

undertaking of certain investigative measures is made dependent on the previous authorization of

a judge. The Initiative introduces a broad concept of authorities which can issue an EIO,

including not only a judge, but also other judicial authorities (an investigative magistrate or a

public prosecutor),402 and even some other authorities, if they are acting as investigating

authorities in a specific case.403 If authorities other that a judge issue an EIO, the executing State

is obliged to carry out the measure ordered in it, even though its legal (or even constitutional)

order requires an authorization of a judge for such a measure to be executed in its territory. Such

a situation represents a threat to the coherence of its legal order. The FD on the EEW, at least to a

certain extent, avoids this danger by introducing the possibility for a validation procedure in all

cases in which the issuing authority is not a judge, a court, an investigating magistrate or a public

prosecutor.404 However, this provision has been left out of the Initiative, because, in the opinion

of its drafters, the validation procedure “has the detrimental effect to add a supplementary

procedural step in some Member States where judicial authorities are not necessarily competent

at the stage of gathering evidence.”405 The Initiative has also been criticised for leaving out some

of the grounds for refusal which were characteristic of previous cooperation instruments.406 The

Initiative does not mention ne bis in idem as grounds for refusal of an EIO. In order to remedy

this shortcoming, the introduction of other grounds for refusal were called for, where the

execution of an EIO would conflict with the principle ne bis in idem as enshrined in Article 50 of

399 Peers, 2010, p. 6-7, Zimmermann et al., 2011, p. 73. 400Bachmaier Winter does not share this opinion and thinks that „elimination of this provision does not constitute any

relevant change, as it is taken for granted that every judicial authority will check those conditions before issuing the

EIO“, see Bachmaier Winter, 2010, p. 584. 401 Bachmaier Winter, 2010, p. 587, Zimmermann et al., 2011, p. 74. 402 Article 2(a)(i) of the Initiative. 403 Article 2(a)(ii) of the Initiative. 404 See Article 11(4) of the FD EEW. 405 Detailed Statement, p. 15. 406Peers calls it a „bonfire“ of the traditional grounds for refusal of mutual legal assistance, Peers, 2010, p. 6.

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the Charter of Fundamental Rights of the European Union and in Article 54 CISA.407 The

Initiative also left out the double criminality requirement in its entirety, and was severely

criticised for it.408 It was claimed that, while the abandonment of double criminality may be

accepted in relation to investigative measures which do not require the use of coercion, the same

cannot apply in relation to investigative measures which entail restrictions to fundamental

rights.409 Far-reaching abandonment of double criminality was also criticised for its implications

on legal certainty and foreseability of criminal offences and sanctions for the citizen. Since

citizens of the Union cannot be expected to know all criminal laws of all Member States, a

situation may occur in which an act deemed legal by a citizen is a criminal offence in one of the

Member States and therefore citizens may be subjected to investigative measures although they

were not aware that their behaviour is punishable in at least one Member State.410

3. 4. Adoption of the Directive

Almost four years411 after the Initiative was put forward (April 2010), the Directive regarding the

European Investigation Order was adopted in March 2014.

The Directive was adopted pursuant to Article 82 (1)(a) of the Treaty on the Functioning of the

European Union (TFEU). This provision forms part of Chapter IV TFEU, where the provisions

on judicial cooperation in criminal matters are situated. Pursuant to that provision, the European

Parliament and the Council, acting in accordance with the ordinary legislative procedure, may

adopt measures to lay down rules and procedures for ensuring recognition throughout the

European Union of all forms of judgments and judicial decisions. Ordinary legislative procedure

is regulated in Article 294 TFEU. It is a procedure whereby legislative acts are adopted jointly by

the European Parliament and the Council. Normally, the proposal for the adoption of legislative

acts in the ordinary legislative procedure comes from the Commission, but in this case Member

407 Zimmermann et al., 2011, p. 79-80. 408 It was the first time that any EU measure on mutual recognition fully dropped the double criminality requirement,

see Peers, 2010, p. 6. 409 Bachmaier Winter, 2010, p. 584-585. 410 Zimmermann et al., 2011, p. 77. 411 Vogler describes it as the „difficult legislative history of the proposal for a European Investigation Order“,

Vogler, Richard, The European Investigation Order: Fundamental Rights at Risk?, in Ruggeri, Stefano (ed.),

Transnational Evidence and Multicultural Inquiries in Europe, Springer, 2014, p. 45.

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States used the possibility foreseen in Article 76 (b) TFEU, pursuant to which legislative acts in

the area of judicial cooperation in criminal matters may be adopted not only on a proposal by the

Commission, but also on the initiative of a quarter of the Member States. The European

Parliament adopted its position on the draft Directive on the 27th of February 2014.412 Following

the position of the European Parliament, the Council adopted the Directive on the 14th of March

2014. The Directive was published in the Official Journal of 1 May 2014.413 Member States are

obliged to implement the provisions of the Directive into their national legal orders by 22 May

2017.414

II. ANALYSIS OF THE FRAMEWORK DECISION ON THE EUROPEAN EVIDENCE

WARRANT

Mutual legal assistance instruments which relate to the cross-border gathering of evidence were

analysed from three different perspectives: the perspective of the requesting State, the perspective

of the requested State, and the perspective of the individual concerned. The same approach shall

be applied here in relation to the Framework Decision on the European Evidence Warrant.

Terminological changes which have been introduced with the shift from the mutual legal

assistance to the mutual recognition model shall be taken into account. In accordance with this,

the provisions of the Framework Decision shall be analysed from the point of view of the issuing

State, the point of view of the executing State, and the point of view of the individual concerned.

1. Position of the issuing State

The position of the issuing State in the mutual recognition model is comparable to the position of

the requesting State in the mutual legal assistance model of judicial cooperation in criminal

matters. The issuing State is the State in which criminal proceedings are taking place and the

successful course of the proceedings requires that certain official actions are undertaken on the

412 Position of the European Parliament adopted at first reading on 27 February 2014 with a view to the adoption of

Directive 2014/.../EU of the European Parliament and of the Council regarding the European Investigation Order in

criminal matters. 413 Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European

Investigation Order in criminal matters, OJ L 130, 1. 5. 2014, p. 1-36. 414 Article 36(1) of the Directive.

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territory of another State. However, the position of the issuing State, although comparable to the

position of the requesting State, differs significantly. While the requesting State requested

another State to assist its criminal proceedings by undertaking certain official actions on its

territory to the benefit of those proceedings, the issuing State orders for certain official actions to

be undertaken on the territory of another State.415 This is the core difference between these two

models and a circumstance which represents the change in paradigm of judicial cooperation in

criminal matters.

The interests of the issuing State are the same ones as the interests of the requesting State: they

both wish to successfully gather evidence on the territory of another State, and to be able to use

the evidence gathered in its domestic criminal proceedings. With the change of the cooperating

paradigm, the possibility for the issuing State to satisfy its first interest has obviously grown – the

issuing State is not requesting assistance from another State and facing uncertainty as to its

outcome. In the order model, the issuing State is ordering the action which is undertaken on the

territory of the executing State, which guarantees that the action will be undertaken on the

territory of the executing State. However, as to the validity of the outcome of the action for the

criminal proceedings in the issuing State, the situation is not so clear. Namely, the possibility for

the issuing State to use the evidence gathered in the executing State does not depend on the use of

the order or the request model, but on the extent to which the issuing State can export its own law

to the territory of the executing State.

In order to be able to determine the position of the issuing State, the provisions of the Framework

Decision on the European Evidence Warrant shall be analysed. Its provisions which relate to the

position of the issuing State shall be divided into the following categories, which are consistent

with the categories in which the position of the requesting State in the mutual legal assistance

model was analysed: a) procedures in relation to which the EEW may be issued, b) evidence

gathering actions that may be the object of the EEW, c) authorities competent to issue the EEW,

d) conditions for issuing the EEW, e) transmission of the EEW, and f) the way in which the EEW

is executed.

415 On the difference between „the request model“ and „the order model“ of judicial cooperation in criminal matters,

see Klip, André, European Criminal Law, An Integrative Approach, Intersentia, Cambridge-Antwerp-Portland, 2012,

p. 343, 356-357.

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1. 1. Proceedings in relation to which the EEW may be issued

Proceedings for which the EEW may be issued are defined in Article 5 of the Framework

Decision. Pursuant to that provision, an EEW may first of all be issued with respect to criminal

proceedings which are brought by, or are to be brought before, a judicial authority of the issuing

State.416 The provision makes it clear that criminal proceedings are only proceedings in relation

to criminal offences under the national law of the issuing State. All stages of criminal

proceedings are covered, from the investigative phase of the proceedings to the appellate

proceedings.417 Next to criminal proceedings, an EEW may also be issued in proceedings brought

by administrative authorities in respect to acts which are punishable under the national law of the

issuing State by virtue of being infringements of the rules of law, and where the decision may

give rise to proceedings before a court having jurisdiction in particular criminal matters.418 An

EEW may also be issued in proceedings brought by judicial authorities in respect to acts which

are punishable under the national law of the issuing State by virtue of being infringements of the

rules of law, and where the decision may give rise to further proceedings before a court having

jurisdiction in particular criminal matters.419 These provisions cover proceedings in relation to

offences under administrative penal law. Such provisions were already contained in CISA, and

were later overtaken in the EU-MLA-2000 and its Protocol,420 and therefore do not present a

novelty in European judicial cooperation in criminal matters.421 The same can be concluded in

relation to proceedings which relate to offences or infringements for which a legal person may be

held liable or punished in the issuing State, which are brought under the scope of application of

the EEW by Article 5(d) of the Framework Decision. Such a provision was already contained in

the EU-MLA-2000.422

Therefore, in relation to proceedings for which the EEW may be issued, the Framework Decision

does not bring anything new when compared to existing instruments on mutual legal assistance in

416 Article 5(a) FD EEW. 417 Mavany, 2012, 96. 418 Article 5(b) FD EEW. 419 Article 5(c) FD EEW. 420 See supra Proceedings in relation to which assistance may be requested, p. 29-32. 421 Ditscher, p. 156. 422 See Article 3 (2) EU-MLA-2000.

126

criminal matters.423 On the contrary, the scope of application of mutual legal assistance

instruments in relation to proceedings in which a request for assistance may be issued is even

broader. It covers not only criminal proceedings, proceedings in relation to offences under

administrative penal law and proceedings against legal persons, but also various proceedings that

are not criminal except those that are connected to criminal proceedings. These can be such

proceedings as the enforcement of sentences and similar measures, proceedings for compensation

in respect to unjustified prosecution or conviction, or civil proceedings joined to criminal

proceedings.424 These proceedings are not explicitly included into the scope of application of the

European Evidence Warrant. This means that any judicial cooperation that is needed in relation to

those proceedings will have to follow the path of the mutual legal assistance, and not the mutual

recognition regime.

1. 2. Evidence gathering actions that may be the object of the EEW

In the mutual legal assistance scheme, not only those evidence gathering actions that were

regulated in mutual legal assistance instruments, but all other evidence gathering actions could

have been the object of the request for mutual assistance. This was a consequence of the

flexibility of the mutual legal assistance scheme.425

When it comes to defining its material scope of application, the European Evidence Warrant

takes a different approach than the mutual legal assistance instruments. The mutual legal

assistance instruments concentrated on the evidence gathering action, such as the interrogation of

a witness or search of premises, to be undertaken in the requested State. Pursuant to the mutual

legal assistance logic, the requesting State asked the requested State to perform a certain evidence

gathering action on its territory to the benefit of criminal procedures that are taking place in the

423 That was the intention of the drafters of the Proposal for a FD EEW: „This ensures that the proposal has the same

scope as existing instruments on mutual assistance in criminal matters within the European Union, in particular as a

result of the EU 2000 Convention“, Proposal for a Council Framework Decision on the European Evidence Warrant

for obtaining objects, documents and data for use in proceedings in criminal matters, COM(2003) 688 final, 14. 11.

2003, p. 19. 424 See supra Proceedings in relation to which assistance may be requested, p. 29-32. 425 This interpretation is based on provision of Article 1 (1) CoE-MLA-1959, pursuant to which “The Contracting

Parties undertake to afford each other (…) the widest measure of mutual assistance (…)”.

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requesting State. The European Evidence Warrant concentrates on the objective to be

achieved,426 rather than on the evidence gathering action that is to be undertaken in order to

achieve that objective. Pursuant to the European Evidence Warrant, the issuing State is ordering a

certain objective to be achieved, that is to say a certain piece of evidence to be collected on the

territory of the executing State, but leaves the executing State the choice of the evidence

gathering action to be undertaken in order to achieve that objective. From the reasons given in the

Explanatory Memorandum to the Proposal for a Framework Decision on the European Evidence

Warrant, it can be concluded that the Commission decided to propose this new approach in order

to overcome the problems of cooperation in evidence gathering which arise out of differences

between Member States criminal procedural laws. A brief overview of criminal procedural laws

of Member States shows that different states use different powers in order to achieve the same

objective in evidence gathering in a national context. Whereas some states use disclosure or

production powers, others use search and seizure powers in the same situation. There are also

differences in the way Member States regulate search and seizure powers in their domestic

criminal procedural laws in relation to offences for which search and seizure may be ordered or

in relation to formal conditions for search and seizure.427 In these circumstances, the approach

that the Commission proposed focuses on the situation in the executing State, rather than on the

situation in the issuing State. As the Commission put it: “Mutual recognition of specific types of

national orders to obtain evidence could therefore result in the executing State being required to

carry out a search and seizure in circumstances in which it would normally use less intrusive

mechanisms.”428 Not to bring the executing State into this situation, the issuing State is only

determining the objective to be achieved, however, the executing State is free to choose the

evidence gathering action which will enable it to achieve the objective indicated in accordance

with its domestic criminal procedural law. The concern of the Commission for the legal situation

in the executing State arises out of the fact that mutual recognition represents a more stringent

form of cooperation in comparison to mutual legal assistance. In the mutual legal assistance

scheme, the requested State had broad possibilities not only to refuse cooperation, but also to


and data for use in proceedings in criminal matters, COM(2003) 688 final, 14. 11. 2003, p. 9. 427 Proposal for a Council Framework Decision on the European Evidence Warrant for obtaining objects, documents

and data for use in proceedings in criminal matters, COM(2003) 688 final, 14. 11. 2003, p. 2-3. 428 Proposal for a Council Framework Decision on the European Evidence Warrant for obtaining objects, documents


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adapt the request for assistance to the requirements of its domestic law, using the exequatur

procedure. In the mutual recognition scheme, possibilities to refuse assistance are significantly

narrowed, and the exequatur procedure is abolished.

The scope of the application of the European Evidence Warrant is regulated in Article 4 of the

Framework Decision. In accordance with what is explained above, its scope of application is

determined in relation to types of evidence, and not to types of evidence gathering actions.

Pursuant to that provision, the European Evidence Warrant may be issued with a view to

obtaining in the executing State objects, documents and data needed in the issuing State.429 The

European Evidence Warrant applies only to objects, documents and data obtained under various

procedural powers, such as seizure, production or search powers.430 The Framework Decision

does not give a definition of objects, documents and data that fall within its scope of application,

but it determines their meaning in a negative way, by enlisting types of evidence that are

excluded from the scope of application of the European Evidence Warrant.431 The European

Evidence Warrant shall not be issued for the purpose of requiring the executing authority to: a)

conduct interviews, take statements or initiate other types of hearings involving suspects,

witnesses, experts or any other party; b) carry out bodily examinations or obtain bodily material

or biometric data directly from the body of any person, including DNA samples and fingerprints;

c) obtain information in real time such as through the interception of communications, covert

surveillance or monitoring of bank accounts; d) conduct analysis of existing objects, documents

and data; and e) obtain communications data retained by providers of a publicly available

electronic communications service or a public communications network.432

If we analyze the list of evidence which is excluded from the scope of application of the

European Evidence Warrant, we come to a conclusion that the European Evidence Warrant

applies only to evidence that already exists (objects, documents, and data)433 and that is directly

available (through seizure, production or search powers). Other types of evidence are excluded

429 Article 4 (1) FD EEW. 430 Proposal for a Council Framework Decision on the European Evidence Warrant for obtaining objects, documents

and data for use in proceedings in criminal matters, COM(2003) 688 final, 14. 11. 2003, p. 7. 431 Ditscher, 151. 432 Article 4 (2) FD EEW. 433 Mavany, 2012, 97.

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This relates both to those types of evidence which do not exist, but are directly available (such as

taking statements from persons or the interception of communications), and those types of

evidence which already exist, but are not directly available without further investigation or

analysis (such as the commissioning of an expert’s report or the taking of DNA samples from the

body of a person).434

Such a narrow scope of application of the European Evidence Warrant indicates that the

Commission was aware of the fact that the area of evidence would be a “hard nut” when it comes

to the application of the principle of mutual recognition. The Commission decided to use a “step-

by-step” approach, whereby the European Evidence Warrant is seen as only “the first step

towards a single mutual recognition instrument that would in due course replace the existing

mutual assistance regime.”435 Objects, documents and data were therefore to be used as a testing

ground for the application of the principle of mutual recognition in the area of evidence.

Broadening of the scope of the application of the principle of mutual recognition to other types of

evidence could only follow after additional measures for the harmonization of defence rights at

the European Union level have been adopted.436

Such a narrow scope of application of the European Evidence Warrant creates additional

confusion in the area of cross-border evidence gathering, rather than making the situation

simpler. For all types of evidence that are excluded from the scope of application of the European

Evidence Warrant, mutual legal assistance instruments will still have to be used in order to obtain

evidence in a cross-border situation. This leads to a situation where, in relation to the same case,

one type of evidence will be gathered using the mutual recognition scheme (objects, documents,

data), and other types of evidence, which are excluded from the scope of application of the

European Evidence Warrant, will be gathered using the mutual legal assistance scheme.437


and data for use in proceedings in criminal matters, COM(2003) 688 final, 14. 11. 2003, p. 10. 435 Proposal for a Council Framework Decision on the European Evidence Warrant for obtaining objects, documents

and data for use in proceedings in criminal matters, COM(2003) 688 final, 14. 11. 2003, p. 10. 436 Mavany, 2012, 99. 437 Proposal for a Council Framework Decision on the European Evidence Warrant for obtaining objects, documents

and data for use in proceedings in criminal matters, COM(2003) 688 final, 14. 11. 2003, p. 9-10.

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Article 4 of the Framework Decision introduces a number of exceptions to the previously defined

scope of application of the European Evidence Warrant. Pursuant to the general rule, the

European Evidence Warrant shall cover (only) the objects, documents and data specified

therein.438 By way of exception to the general rule, the European Evidence Warrant shall, if so

indicated by the issuing authority, also cover any other objects, documents or data, which the

executing authority discovers during the execution of the European Evidence Warrant and

without further enquiries considers it to be relevant to the proceedings for the purpose of which

the European Evidence Warrant was issued.439

In relation to types of evidence which are explicitly excluded from the scope of application of the

European Evidence Warrant, the European Evidence Warrant may be issued with a view to

obtaining objects, documents and data falling within the categories of excluded evidence, where

the objects, documents and data are already in the possession of the executing authority before

the European Evidence Warrant was issued.440 Being in possession of the executing authority

means that these types of evidence have already been gathered in the executing State, prior to the

issuing of the warrant.441 This means that it is possible to gather records of intercepted

communications or protocols of the interrogation of the suspect using the European Evidence

Warrant. However, it is not possible to use the European Evidence Warrant to initiate these

evidence-gathering actions.

Conducting interviews, taking statements or initiating other types of hearings involving suspects,

witnesses, experts or any other party is explicitly excluded from the scope of application of the

European Evidence Warrant. However, a European Evidence Warrant may, if requested by the

issuing authority, also cover taking statements from the persons present during the execution of

the European Evidence Warrant and directly related to the subject of the European Evidence

Warrant.442

438 Article 4 (1) FD EEW. 439 Article 4 (5) FD EEW. 440 Article 4 (4) FD EEW. 441 Proposal for a Council Framework Decision on the European Evidence Warrant for obtaining objects, documents

and data for use in proceedings in criminal matters, COM(2003) 688 final, 14. 11. 2003, p. 8. 442 Article 4 (6) FD EEW.

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1. 3. Authorities competent to issue the EEW

In the Proposal for a Framework Decision on the EEW, the Commission foresaw the adoption of

a number of minimum safeguards that should serve to protect fundamental rights.443 In the

opinion of the Commission, these minimum safeguards shall also serve to raise the mutual trust

of Member States in each other’s criminal justice system.444 One of the safeguards proposed

related to the definition of the issuing authority. Namely, evidence gathering actions can often

include the use of coercive powers. In some Member States, the authority to order the use of

coercive powers is reserved only for the judicial authorities,445 while in other Member States

other authorities of a non-judicial character, for example, police or administrative authorities, can

be given such authority. Such a situation can be seen as a person’s fundamental rights being

threatened in some Member States and can therefore lead to distrust. In order to avoid these

situations, the Commission proposed the adoption of a restrictive definition of an issuing

authority, pursuant to which the term shall only encompass a judge, investigating magistrate or

prosecutor with competence under national law to issue a European Evidence Warrant.446 Other

competent authorities, which may include police, customs or administrative authorities, cannot be

recognized as issuing authorities. These authorities must seek the decision of a judge,

investigating magistrate or a prosecutor in order to have the EEW issued.447

The Framework Decision did not fully follow the path indicated by the Proposal.448 First of all, it

defines an issuing authority as a judge, a court, an investigating magistrate or a public

prosecutor,449 which is in line with the Proposal. But, further on, it also allows the issuing

authority to be “any other judicial authority as defined by the issuing State and, in the specific

case, acting in its capacity as an investigating authority in criminal proceedings with competence

443 Proposal FD EEW, Preamble, Recital 8. 444 Proposal for a Council Framework Decision on the European Evidence Warrant for obtaining objects, documents

and data for use in proceedings in criminal matters, COM(2003) 688 final, 14. 11. 2003, p. 11. 445 In many Member States, the authority to order search or seizure is reserved only for a judge, other authorities of a

judicial character (public prosecutor) not being given the same authority, see Roger, 34, note 49. 446 Article 2 (c) Proposal FD EEW. 447 Proposal for a Council Framework Decision on the European Evidence Warrant for obtaining objects, documents

and data for use in proceedings in criminal matters, COM(2003) 688 final, 14. 11. 2003, p. 17. 448 Roger, 34. 449 Article 2 (c)(i) FD EEW.

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to order the obtaining of evidence in cross border cases in accordance with national law”.450 The

latter provision allows other authorities of a non-judicial character to be recognized as issuing

authorities.

Although allowing Member States to make authorities of a non-judicial character, issuing

authorities, the Framework Decision still recognized this situation as being unacceptable to those

Member States where coercive measures can be ordered by authorities of a judicial character

only.451 This recognition materialized through the regulation of a validation procedure. A

situation where the execution of the EEW may require the executing State to carry out search or

seizure, the executing authority may decide not to execute the EEW, if the issuing authority was

not a judge, a court, an investigative magistrate or a public prosecutor, unless the EEW has been

validated by one of those authorities in the issuing State.452 Even more so where by a declaration

to the General Secretariat of the Council, a Member State may require such validation “in all

cases where the issuing authority is not a judge, a court, an investigative magistrate or a public

prosecutor and where the measure necessary to execute the EEW would have to be ordered or

supervised by a judge, a court, an investigative magistrate or a public prosecutor under the law of

the executing State in a similar domestic case”.453

1. 4. Conditions for issuing the EEW

In the mutual legal assistance regime, no conditions were attached to the issuing of a request for

assistance. The requesting State did not have an obligation to assess the availability of the

evidence gathering action requested under its own criminal law.454 This can be considered

acceptable in circumstances where there is no strict obligation for the requested State to meet the

assistance request of the requesting State. However, with the shift from the mutual legal

assistance to the mutual recognition model of judicial cooperation in criminal matters, the attitude

towards the introduction of conditions for issuing a warrant or order have changed. Mutual

450 Article 2 (c)(ii) FD EEW. 451 Mavany, 2012, 118. 452 Article 11 (4) FD EEW. 453 Article 11 (5) FD EEW. 454 See supra Conditions for issuing a request for assistance, p. 34-35.

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recognition rules give the issuing State greater possibilities to receive assistance from abroad by

significantly widening the reach of its law enforcement authorities. In the interest of protecting

fundamental rights,455 the Proposal for a FD EEW foresaw the obligation for the issuing authority

to check the existence of three preconditions before issuing the EEW. These preconditions related

to i) necessity and proportionality, ii) availability, and iii) admissibility.

In relation to necessity and proportionality, the issuing authority needed to be satisfied that the

objects, documents or data sought are necessary and proportionate for the purpose of proceedings

in relation to which an EEW was issued.456 In relation to availability, the issuing authority needed

to be satisfied that the objects, documents and data sought could be obtained under the law of the

issuing State in similar circumstances if they were available on the territory of the issuing State,

even though different procedural measures might be used.457 The last condition for issuing the

EEW pursuant to the Proposal, was the admissibility of the evidence sought in the criminal

procedure of the issuing State in relation to which the EEW was issued: the issuing authority

needed to be satisfied that the objects, documents or data are likely to be admissible in the

proceedings for which they are sought.458

The FD EEW itself regulates conditions for the issuing of an EEW in Article 7. The provision

contained in the text of the FD differs from the text of the Proposal. The FD does not foresee

admissibility of the objects, documents and data gathered in the executing State in the criminal

procedure of the issuing State as a precondition for issuing the EEW.

1. 5. Transmission of the EEW

The transmission of the EEW is regulated in Article 8 of the Framework Decision. As a general

rule, an EEW has to be transmitted directly from the issuing to the executing authority.459 The

executing authority to which the EEW has to be transmitted is the one “in which the competent


and data for use in proceedings in criminal matters, COM(2003) 688 final, 14. 11. 2003, p. 19. 456 Article 6 (a) Proposal FD EEW. 457 Article 6 (b) Proposal FD EEW. 458 Article 6 (3) Proposal FD EEW. 459 Article 8 (1) FD EEW.

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authority of the issuing State has reasonable grounds to believe that relevant objects, documents

and data are located”.460 It is the obligation of the issuing authority to find out which executing

authority is competent for an individual case pursuant to the law of the executing State. If the

issuing authority does not know this information, it is in obligation to make all necessary

inquiries, including via the European Judicial Network contact points, in order to obtain the

information from the executing State.461 In individual cases, it may happen that, despite all the

efforts of the issuing authority, the EEW is sent to an authority in the executing State which is not

competent to act upon it. In that case, the authority which received the EEW, shall ex officio,

transmit it to the competent judicial authority in the executing State and so inform the issuing

authority.462

Next to the general rule which provides for direct communication between the issuing and the

executing authority, the Framework Decision opens the way for Member States to have their

central authorities involved in the transmission of the EEW. Each Member State may designate a

central authority to assist the competent authorities or may even make its central authority

responsible for the administrative transmission and reception of the EEW as well as for all other

correspondence relating thereto.463 Having in mind that one of the main advantages of the mutual

recognition regime is the gain in effectiveness of judicial cooperation, and that in the area of the

transmission of requests this is achieved through direct communication between the competent

authorities, the possibility to include central authorities of the respective States into this process is

rightly criticized.464

It is often claimed that by introducing the direct communication between the competent judicial

authorities, the Framework Decision brought about far-reaching changes in the area of judicial

cooperation in criminal matters in relation to evidence when compared to the mutual legal

assistance regime.465 However, if the rules of the Framework Decision are compared with the

correspondent rules in the mutual legal assistance instruments, such an assessment cannot be

460 Article 8 (1) FD EEW. 461 Article 8 (4) FD EEW. 462 Article 8 (5) FD EEW. 463 Article 8, paragraph 2 of the Framework Decision. 464 Roger, 35, Mavany, 112-114. 465 See Mavany, 111.

135

accepted as accurate. Namely, with the provisions of CISA, which were later overtaken in EU-

MLA-2000, direct communication between the competent judicial authorities has been made a

rule for judicial cooperation in criminal matters in a European Union context.466 In that sense, the

provisions of the Framework Decision do not bring important changes into this area, either.467

1. 6. The way in which the EEW is executed

The issuing State is interested in the way in which the EEW is going to be executed in the

executing State. The way in which the EEW is executed determines the admissibility of evidence

gathered in the executing State in the criminal procedure in the issuing State in relation to which

the EEW was issued. In relation to the way in which the EEW is executed, the following

questions shall be analysed: i) decision on the evidence gathering action to be undertaken, ii) law

which regulates the gathering of evidence, iii) officials which undertake the action, and iv) time-

limits for the execution of the EEW.

1. 6. 1. Decision on the evidence gathering action to be undertaken

As previously explained, the issuing authority does not decide about the evidence gathering

action that is going to be undertaken in the executing State in the execution of the EEW.468 The

issuing authority decides only about the goal to be achieved – about the objects, documents and

data that are going to be gathered on the territory of the executing State. However, the decision

on the evidence gathering action to be undertaken is made by the executing authority.

466 See supra Transmission of the request for assistance, p. 35-38. 467 In the same sense, see Proposal for a Council Framework Decision on the European Evidence Warrant for

obtaining objects, documents and data for use in proceedings in criminal matters, COM(2003) 688 final, 14. 11.

2003, p. 20. 468 See supra Evidence gathering actions that may be the object of the EEW, p. 105-110.

136


In the mutual legal assistance regime, requests for cross-border evidence gathering are executed

in accordance with the law of the requested State (locus regit actum). However, if the requesting

State expressly indicated formalities or procedures that should be followed during the execution

of a request for assistance, the requested State is obligated to follow these formalities or

procedures (forum regit actum), unless they are contrary to the fundamental principles of law in

the requested State.469

The Framework Decision on the European Evidence Warrant follows the same logic. Pursuant to

the Framework Decision, “[a]ny measure rendered necessary by the EEW shall be taken in

accordance with the applicable procedural rules of the executing State”470 (locus regit actum).471

However, there is an obligation for the executing authority to comply with the formalities and

procedures expressly indicated by the issuing authority (forum regit actum).472 The only situation

where the executing authority may be exempted from such obligation is where such formalities

and procedures are contrary to the fundamental principles of law in the executing State.473

It can be concluded that the EEW does not bring anything new in the area of cross-border

evidence gathering when it comes to the law that applies in the execution of requests for

assistance. The rules which regulate the matter found in the Framework Decision on the EEW

fully correspond to the rules found in the mutual legal assistance instruments. Proposal for a

Framework Decision contained different rules. Next to the general rule, which foresaw the

possibility for the issuing authority to expressly indicate formalities and procedures, which the

executing authority needed to comply with, unless they were contrary to the fundamental

principles of law in the executing State,474 it also contained a closed list of situations in which the

executing authority did not have the possibility to refuse to comply with the formalities expressly

469 See supra Law which regulates the gathering of evidence, p. 39-41. 470 Article 11 (2) FD EEW. 471 See Roger, 36. 472 See Roger, 36. 473 Article 12 FD EEW. 474 Article 13 (e) Proposal FD EEW.

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indicated by the issuing authority.475 However, the Framework Decision, as was shown before,

overtook only the general rule.

1. 6. 3. Officials who undertake the action

Pursuant to the mutual legal assistance regime, the presence of the officials and other interested

persons from the requesting party at the execution of a request for assistance in the requested

party is only a possibility, which can be accepted or declined by the requested party.476

A proposal for a Framework Decision on the EEW made advances in this area by obligating the

executing State to accept the presence of a competent authority of the issuing State, or an

interested party nominated by the issuing authority, during the execution of the warrant.477

However, the Framework Decision itself did not follow the Proposal on the issue. The

Framework Decision does not contain a specific provision which regulates the question of the

presence of officials of the issuing State during the execution of the warrant in the executing

State. In the Framework Decision, this question is regulated as a formality or procedure that can

be indicated by the issuing authority and followed by the executing authority during the

execution of the warrant.478 Like every other formality or procedure indicated by the issuing

authority, it needs to be accepted by the executing authority, unless it is contrary to the

fundamental principles of law in the executing State.479

475 Article 13 (a) – (d) Proposal FD EEW. These situations were the following: a) where, in the opinion of the issuing

authority, there is a significant risk that the objects, documents and data sought might be altered, moved or

destroyed, the issuing authority may require that the executing authority uses coercive measures to execute the

warrant, b) the issuing authority may require that the fact that an investigation is carried out , and the substance of

investigation, to be kept confidential, c) the executing authority should allow a competent authority of the issuing

State, or an interested party nominated by the issuing authority, to be present during the execution of the warrant and

d) the issuing authority could have requested the executing authority to keep a record of the “chain of evidence”. 476 See supra Officials who undertake the action, p. 477 Article 13 (c) Proposal FD EEW. See also Proposal for a Council Framework Decision on the European Evidence

Warrant for obtaining objects, documents and data for use in proceedings in criminal matters, COM(2003) 688 final,

14. 11. 2003, p. 23: „However, unlike the 1959 Convention, it is proposed that the executing State could not refuse

to accept the presence of such parties“. 478 Recital 14 FD EEW. 479 Article 12 FD EEW.

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1. 6. 4. Time-limits for the execution of the EEW

Delays in the execution of requests for mutual assistance have often been highlighted as one of

the major shortcomings of the traditional model of judicial cooperation in criminal matters. In

order to overcome these problems, the EU-MLA-2000, prescribed, in Article 4, paragraph 2, a

general obligation for Member States to execute the requests for mutual assistance “as soon as

possible” and “to take as full account as possible of the procedural deadlines and other deadlines

indicated by the requesting Member State”.480 However, the Convention did not lay down

specific deadlines in which the requests for mutual assistance need to be executed. In relation to

this question, the Framework Decision on the EEW takes a different approach by stipulating

specific deadlines in which the EEW needs to be recognized and executed. In the opinion of the

Commission, laying down deadlines for the execution of the EEW is one of the major benefits of

the mutual recognition regime in comparison to the mutual legal assistance regime.481

Pursuant to the Preamble of the Framework Decision, “[t]ime limits are necessary to ensure

quick, effective and consistent cooperation on obtaining objects, documents and data for use in

proceedings in criminal matters throughout the European Union”.482 Particular provision on

deadlines is to be found in Article 15 of the Framework Decision. This provision primarily

regulates a general obligation of Member States to take the necessary measures to ensure

compliance with the deadlines provided therein.483 It continues by prescribing specific deadlines

for the refusal to recognize or execute the EEW, for the execution of the EEW, and for the

transfer of objects, documents and data which the EEW relates. Pursuant to those rules, a

decision to refuse recognition or execution of the EEW must be taken as soon as possible and no

later than 30 days after the receipt of the EEW by the competent executing authority.484 In

relation to the execution of the EEW, the executing authority is under an obligation to take

possession of the objects, documents and data without delay, and no later than 60 days after the

480 See supra Time-limits for the execution of the request for assistance, p. 43-44. 481 Proposal for a Council Framework Decision on the European Evidence Warrant for obtaining objects, documents

and data for use in proceedings in criminal matters, COM(2003) 688 final, 14. 11. 2003, p. 5. 482 Recital 20 FD EEW. The same provision was contained in Recital 11 of the Proposal FD EEW. 483 Article 15 (1) FD EEW. 484 Article 15 (2) FD EEW. Proposal for a Framework Decision foresaw the application of a shorter deadline.

Pursuant to the Proposal, a decision to refuse recognition or execution of the EEW must have been taken as soon as

possible and no later than 10 days after the receipt of the EEW by the competent executing authority. See Article 17

(2) Proposal FD EEW.

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receipt of the EEW by the competent executing authority.485 When it comes to the transfer of

objects, documents and data obtained under the EEW, the executing State is under an obligation

to effectuate it without undue delay.486 If the executing authority is not capable of meeting the

prescribed deadlines, it shall without delay inform the issuing authority and give the reasons for

the delay and an estimation of the time needed for the action to be taken.487

Taking into consideration that in specific cases, the circumstances of the issuing authority might

be that they are interested in having the EEW executed within a specific time frame. For example

on a specific day, which is contained in a provision of the Framework Decision to regulate such a

situation. Pursuant to this provision, the executing authority has to take as full account as possible

of the specific time frame indicated by the issuing authority.488

When compared to the time that is normally needed to execute a request for mutual assistance,

which can take from a couple of months up to a couple of years,489 a deadline prescribed in the

Framework Decision on the EEW is much shorter. This will certainly help improve the

effectiveness of judicial cooperation in criminal matters in relation to evidence. Such an outcome

should not be seen as something which only favours the interests of the prosecution. Namely,

speedier cooperation also enables the criminal procedure in the issuing State to be brought to an

end in a shorter period of time, thereby safeguarding the right of the accused to have his trial

completed within a reasonable time.490

485 Article 15 (3) FD EEW. The same deadline was also prescribed in the Proposal for a Framework Decision, see

Article 17 (3)(b) Proposal FD EEW. 486 Article 15 (5) FD EEW. Next to this general obligation, the Proposal for a Framework Decision also foresaw the

application of a specific deadline for transfer of obtained objects, documents and data – 30 days of the execution of

the EEW, see Article 17, (4)(b) Proposal FD EEW. 487 Article 15 (4) FD EEW. 488 Article 15 (1) FD EEW. 489 Mavany, 136. 490 Mavany, 136.

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2. Position of the executing State

The executing State is the Member State in whose territory the objects, documents, and data are

located.491 In the mutual recognition regime, the position of the executing State is determined by

the fact that this State has a strict obligation to assist the criminal procedure of the issuing State.

After the competent judicial authority of the issuing State has issued an EEW, the executing State

is in principle obliged to recognize and execute an EEW in its territory. The fact that the criminal

laws of the issuing and the executing State are different is not an obstacle for the recognition and

execution of a warrant that is emanating from the issuing State. The application of the mutual

recognition logic in the area of evidence leads to a situation where two different regimes for

ordering evidence-gathering measures are applicable in the executing State. The first regime

applies to criminal matters that only have a domestic dimension and on these matters the criminal

law of the executing State applies. For matters with a transnational dimension, where “European

warrants” are used, the ordering of an evidence-gathering action is determined not by the law of

the executing State, but by the law of the issuing State.492 This means that a multitude of different

criminal legal regimes for ordering evidence-gathering measures come under consideration and

may be applicable in the territory of the executing State. While the law of the issuing State is

decisive for ordering the evidence-gathering measures, the law of the executing State is decisive

for its execution. Once the EEW has been recognized, it is executed “in the same way as an

authority of the executing State would obtain the objects, documents or data“.493

By allowing the production of extraterritorial effects for decisions of the judicial authorities of

the issuing State, the application of the principle of mutual recognition causes problems for

national sovereignty and coherence of national legal order of the executing State. Matters related

to criminal law are still regarded as closely connected with national sovereignty of the State.

Through the recognition and execution of a criminal law decision of another Member State,

whose substantive and procedural criminal laws are different, the executing State loses control

over criminal law matters in its territory494.

491 Article 2 (b) FD EEW. 492 Gleβ, StV, 12/2004, p. 680. 493 Article 11 (1) FD EEW. 494 Mitsilegas, EU Criminal Law, p. 115 and further.

141

In order to mitigate these concerns which arise out of the application of the principle of mutual

recognition in the area of evidence, the FDEEW introduces certain safeguards. One of the

safeguards is the obligation of the issuing authority to check the necessity, proportionality and

availability of objects, documents, and data which are requested from the issuing State.495

Another important safeguard is that the executing State makes a decision on the evidence-

gathering action that is going to be undertaken on its territory in order to execute an EEW.496

However, the most important safeguards are the grounds for refusal of recognition and execution

of an EEW. The existence of grounds for refusal of cooperation erases automaticity in the

recognition and execution of an EEW, and enables the executing State to adapt cooperating needs

to certain, strictly defined, demands arising out of its legal order.

2. 1. Grounds for refusal of recognition and execution of the EEW

If the principle of mutual recognition is to be applied consequently, no grounds for refusal of

recognition and execution of the European Evidence Warrant would be recognized.497 However,

in the Framework Decision on the European Evidence Warrant, as well as in all other mutual

recognition instruments, the principle of mutual recognition is not applied in the form of

“automatic” recognition and execution of requests. Executing Member States, or rather

authorities competent to recognize and execute a European Evidence Warrant in the executing

state (executing authorities) are given the possibility to refuse recognition or execution of the

European Evidence Warrant.

One of the most important differences between the mutual legal assistance and the mutual

recognition regime is the place and importance of the grounds for refusal. In the mutual legal

assistance regime, the requested State is given broad possibilities to refuse the execution of a

request for assistance. In the mutual recognition regime, the attitude in relation to the grounds for

the refusal of cooperation has changed in two ways, in comparison with the mutual legal

assistance regime. First, the number of grounds for the refusal of cooperation should be reduced,

495 Article 7 FD EEW. 496 Article 11 (2) FD EEW. 497 Mavany, 127.

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and second, the grounds for refusal of cooperation should be narrow and should be clearly

defined and the discretion of the executing authority in their application should be minimized.

Reduction of the grounds for refusal of cooperation and their clear definition should significantly

improve the effectiveness of judicial cooperation in criminal matters, which was the main

incentive to introduce the principle of mutual recognition in this area. The close

interconnectedness between the grounds for refusal of cooperation and the effectiveness of

judicial cooperation in criminal matters is proclaimed in Recital 16 of the Preamble of the

Framework Decision on the EEW, where it is stated that in order “to ensure the effectiveness of

judicial cooperation in criminal matters, the possibility of refusing to recognize or execute the

EEW should be limited”.

In implementing the mutual recognition logic, the Framework Decision primarily proclaims the

principle of automatic recognition and execution:498 the executing authority shall recognize an

EEW, without any further formality being required and shall forthwith take the necessary

measures for its execution in the same way as an authority of the executing State would obtain,

objects, documents and data.499 However, in the same provision, a limitation to the principle of

automatic recognition and execution is introduced: unless the authority decides to invoke one of

the grounds for non-recognition or non-execution provided for in the Framework Decision.

In the Proposal for a Council Framework Decision on the EEW, only four grounds for refusal

were recognized.

The first two grounds for refusal related to the application of the ne bis in idem principle. The

principle was to have different effects when applied in relations between Member States than in

relations between a Member State and a third country. In relations between Member States, ne bis

in idem was mandatory in grounds for refusal of cooperation,500 meaning that the executing

authority had to oppose the recognition or execution of an EEW, if its recognition and execution

infringes on the ne bis in idem principle in relations between Member States.501 In relations

498 Ditscher, 168. 499 Article 11, paragraph 1 of the Framework Decision. 500 Expalanatory Report to the Proposal, p. 24. 501 Article 15, paragraph 1 of the Proposal.

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between Member States and third countries, the principle of ne bis in idem only recognized the

effects of optional grounds for refusal of recognition or execution, meaning that the executing

authority was free to decide on the recognition and execution of an EEW if it infringed on the ne

bis in idem principle with respect to proceedings in a third State.502

The third grounds for non-recognition or non-execution of an EEW, also of an optional character,

was the existence of an immunity or privilege under the law of the executing State which makes

it impossible to execute the European Evidence Warrant.503

The Fourth grounds for refusal of cooperation, also of an optional character, is the application of

the double criminality requirement.504 Pursuant to the Proposal, double criminality could be used

as optional grounds for refusal of cooperation, but only if it was necessary to carry out a search of

private premises for the execution of the warrant. Moreover, double criminality could under no

circumstances, even if the search of private premises was necessary for the execution of the

warrant, be used as grounds for refusal of recognition or execution, if the EEW related to one of

the offences included in the list given in the Framework Decision. The list included thirty nine

offences,505 which did not have to be punishable in the issuing state by a custodial sentence of a

certain duration.506 Moreover, the application of the double criminality requirement was allowed

only for the transitional period, at the latest five years after entry into force of the Framework

Decision, and only for those Member States that have under existing instruments relating to

mutual assistance in criminal matters made execution of a request for search and seizure

dependent on the condition of dual criminality.507

502 Article 15, paragraph 2(a) of the Proposal. 503 Article 15, paragraph 2(b) of the Proposal. 504 Article 16 of the Proposal. 505 “The list of offences in this Article is copied from the list of offences in Article 2 of the draft Framework Decision

on the application of the principle of mutual recognition to financial penalties. This builds upon the list of offences in

Article 2 of the Framework Decision on the European arrest warrant56, which is also incorporated in Article 3 of the

Framework Decision on freezing orders”, Explanatory Report to the Proposal, p. 25. 506 “In line with the approach adopted in the draft Framework Decision on the application of the principle of mutual

recognition to financial penalties, the list does not contain a threshold level of imprisonment or other penalty in the

issuing State”, Explanatory Report to the Proposal, p. 25. 507 Article 24, paragraph 2 of the Proposal. For Member States that have made double criminality a requirement for

cooperation under the mutual legal assistance regime, see supra …

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The Framework Decision includes a broader list of grounds for non-recognition or non-execution

of the EEW. It acknowledges eight grounds for non-recognition or non-execution and on this list

of grounds of non-recognition or non-execution, is of an enumerative and closed character, which

means that the recognition and execution of the EEW can be refused only if one of the grounds

listed therein exists.508 An executing authority cannot refuse to recognize or execute an EEW for

a reason that is not acknowledged on the list. This is different to the mutual legal assistance

regime, where contracting states had the possibility to introduce new refusal grounds next to

those that were recognized in the mutual legal assistance instrument, by entering a reservation to

one of its provisions. All of the grounds for refusal acknowledged are of an optional character.509

2. 1. 1. Ne bis in idem

The first grounds for refusal relate to the application of the ne bis in idem principle. The

recognition and execution of an EEW may be refused if it infringes the ne bis in idem

principle.510 Unlike the Proposal for the Framework Decision, the Framework Decision does not

make a distinction between the effects of the ne bis in idem principle when applied between

Member States and when applied between a Member State and a third country.511

The principle ne bis in idem was not recognized as grounds for refusal in the mutual legal

assistance instruments. However, this does not mean that it has not been applied in relations

between contracting parties. Namely, by using the possibility to enter reservations to the

provisions of the European Convention on Mutual Assistance in Criminal Matters, many Member

States of the European Union have introduced some variation of the ne bis in idem principle as

508 Mavany, 127. 509 The concept of an optional ground for refusal in mutual recognition instruments is not clear. Two positions can be

accepted in relation to them. Pursuant to the first position, optional grounds for refusal give the executing State the

freedom in their implementation. This freedom enables the executing State to introduce them in its national

implementing legislation or not to introduce them. But once introduced, they can have only a mandatory, not an

optional character. Pursuant to the second position, optional grounds for refusal give the executing authority the

freedom to use it or not to use it in an individual case. For the executing State, this means that it is in an obligation to

implement it in its national law in the same way as it is proscribed in the Framework Decision – as an optional

ground for refusal. The Commission has accepted the second position and has criticized Member States for not-

implementing optional grounds for refusal or implementing them as grounds for refusal of a mandatory, and not of

an optional character. See Mavany, 131. 510 Article 13, paragraph 1(a) of the Framework Decision. 511 Roger, 37.

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grounds for refusal. They have introduced it as general grounds for refusal of cooperation, which

means that it is applied to all mechanisms of mutual legal assistance, including all forms of cross-

border evidence gathering. Out of 28 Member States of the European Union, 12 have used this

possibility.512

To conclude, although only a comparison between the texts of the mutual legal assistance

instruments and the Framework Decision on the European Evidence Warrant would suggest that

the latter introduces new grounds for the refusal of cooperation, which was not recognized in the

mutual legal assistance regime. A more thorough analysis, which also includes reservations

introduced to the provisions of the mutual legal assistance instruments, shows that this is not so.

Ne bis in idem was also used as grounds for refusal under the mutual legal assistance regime and

the Framework Decision on the European Evidence Warrant only recognize the existing practice.

Ne bis in idem is a fundamental principle of EU law513 and a fundamental right guaranteed by

Article 50 of the Charter of Fundamental Rights of the European Union. Article 50 of the Charter

guarantees the right not to be tried or punished twice in criminal proceedings for the same

criminal offence by stating that no one shall be liable to be tried or punished again in criminal

proceedings for an offence for which he or she has already been acquitted or convicted within the

Union in accordance with the law. By referring to EU territoriality, this provision guarantees the

application of the ne bis in idem principle both, within the territory of a single Member State

(national ne bis in idem), as well as in relations between the Member States (transnational ne bis

in idem).

In the EU, national ne bis in idem is guaranteed not only by the Charter, but also by national

constitutions in some of the Member States.514 The development of the national ne bis in idem in

the European Union is strongly influenced by the jurisprudence of the European Court for Human

512 See supra … 513 Vervaele, John A. E., The transnational ne bis in idem principle in the EU. Mutual recognition and equivalent

protection of fundamental rights, Utrecht Law Review, 2/2005, p. 106-107. 514 Article 103 (3) of the German Constitution, Article 31 (2) and (3) of the Croatian Constitution.

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Rights which has been developed on the basis of Article 4 of the 7th Additional Protocol to the

European Convention for Human Rights.515

In relation to the transnational ne bis in idem, besides the Charter, the provision of Article 54 of

the Convention Implementing the Schengen Agreement is of primary importance. Article 54 of

CISA determines that a person whose trial has been finally disposed of in one Contracting Party

may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty

has been imposed, it has been enforced, is actually in the process of being enforced or can no

longer be enforced under the laws of the sentencing Contracting Party. This provision has been

interpreted and further developed in the rich jurisprudence of the European Court of Justice.516

2. 1. 2. Double criminality

The second grounds for refusal relates to the application of the principle of double criminality.

The principle of double criminality has a prominent role in a mutual legal assistance regime.

Although it is not recognized as general grounds for the refusal of cooperation, it has widespread

use in relations between the Member States of the European Union when the execution of a

request for assistance requires the carrying out of a search or seizure of property in the requested

State. Generally speaking, mutual recognition instruments try to limit the use of the double

criminality requirement in cooperation between the Member States of the European Union,

seeing the requirement as a contradiction to the mutual recognition logic.517

Recognition and execution of an EEW may be refused if the EEW relates to acts which would not

constitute an offence under the law of the executing State.518 However, the double criminality

exception applies only if it is necessary to carry out a search or seizure in the executing State in

order to execute an EEW. For an EEW that relates to other evidence gathering measures, which

515 On the principle ne bis in idem in the jurisprudence of the European Court for Human Rights, see Ivičević Karas,

Elizabeta; Kos, Damir, Primjena načela ne bis in idem u hrvatskom kaznenom pravu, HLJKPP, 2/2012, p. 555-560. 516 On the principle ne bis in idem in the jurisprudence of the European Court of Justice, see Burić, Zoran, Načelo ne

bis in idem u europskom kaznenom pravu – pravni izvori i sudska praksa Europskog suda, Zbornik Pravnog fakulteta

u Zagrebu, 3-4/2010, p. 827-852. 517 Mavany, 119. 518 Article 13, paragraph 1(b) of the Framework Decision.

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do not include search and seizure powers the double criminality rule, does not apply.

Furthermore, even if it is necessary to carry out the search or seizure in the executing State, the

principle of double criminality does not apply if the EEW relates to one of the list of offences.

Offences which exclude the application of the double criminality requirement, even if the search

or seizure needs to be carried out in the executing State, are enlisted in Article 14, paragraph 2 of

the Framework Decision.

If one compares the way the double criminality requirement was regulated in the Proposal for a

Framework Decision and in the Framework Decision itself, the following differences can be

pointed out. In the Proposal the double criminality requirement can be applied only in the case of

a search of private premises, in the Framework Decision it can be applied in the case of search

and seizure. The list of offences for which the double criminality requirement cannot be applied

includes thirty nine offences in the Proposal and thirty two offences in the Framework Decision.

In the Proposal, there is no requirement for the offences on the list to be punishable by a sentence

of a certain severity in the issuing State in order to trigger the non-applicability of the double

criminality requirement. In the Framework Decision, offences on the list need to be punishable in

the issuing State by a custodial sentence or a detention order for a maximum period of at least

three years in order not to be subject to verification of double criminality. Also, the Proposal

foresees the full abandonment of the double criminality requirement after expiration of the

transitional period of five years after entry into force of the Framework Decision. No such

provision can be found in the Framework Decision itself. The comparison shows that the

Proposal went much further in the direction of limiting the applicability of the double criminality

requirement with the final aim of its full abandonment after the expiration of the transitional

period. The Framework Decision itself adopted a more moderate approach.

2. 1. 3. Impossibility to execute the EEW

As explained previously (see supra Scope of application, b) Evidence gathering actions that can

be requested), the issuing authority only determines the objective to be achieved, but the

executing authority decides on the evidence gathering action to be undertaken in order to achieve

that objective. “The executing State shall be responsible for choosing the measure which under its

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national law will ensure the provision of the objects, documents or data sought by an EEW and in

deciding whether it is necessary to use coercive measures to provide the assistance”.519 In

choosing the measure necessary to achieve the objective indicated in the EEW, the executing

authority acts in accordance with the law of the executing State and the measure chosen is

undertaken in accordance with that law, “[a]ny measure rendered necessary by the EEW shall be

taken in accordance with the applicable procedural rules of the executing State”.520 On the other

side, when issuing the EEW, the issuing State needs to ensure that “the objects, documents and

data can be obtained under the law of the issuing State in a comparable case if they were

available on the territory of the issuing State, even though different procedural measures might be

used”.521 These provisions show that the position of every cooperating state is fully determined

by its own national law, which can lead to a collision between the applicable laws. One possible

scenario of a collision is when it is possible to achieve a certain objective (to gather an object,

document or data) in the issuing State, but it is not possible to achieve the same objective in the

executing State. This means that despite the fact that the executing State reserves the right to

choose the appropriate evidence gathering action, the desired objective cannot be achieved with

any of the measures that the executing State has at its disposal.522 In other words, it is not

possible to execute the EEW pursuant to the law of the executing State, using the procedural

mechanisms that the executing State has at its disposal.523 When such a situation occurs, the

executing authority may refuse the execution of the EEW.524

2. 1. 4. Immunity or privilege under the law of the executing State

In the Proposal for a Framework Decision on the EEW, immunity or privilege under the law of

the executing State makes it impossible to execute the European Evidence Warrant, which was

recognized in the effects of optional grounds for non-recognition or non-execution of an EEW.525

519 Article 11, paragraph 2 of the Framework Decision. 520 Article 11, paragraph 2 of the Framework Decision. 521 Article 7(b) of the Framework Decision. 522 Roger, 37. 523 Mavany, 130. 524 Article 13, paragraph 1(c) of the Framework Decision. 525 Article 15, paragraph 2(b) of the Proposal.

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No explanation is given for the insertion of the grounds for refusal, except the reference to the

approach adopted in the Framework Decision on Freezing Orders.526

The approach adopted in the Proposal follows the Framework Decision on the EEW itself. In the

Preamble, in Recital 17, it is stated that “[i]t should be possible to refuse an EEW where its

recognition or execution in the executing State would involve breaching an immunity or privilege

in that State”. It is also explained that, following the non-existence of a common definition of a

privilege or immunity at the European Union level, defining the scope of these terms is left to the

national law of the executing State. The Preamble refers, exempli gratia, to the immunities and

privileges which apply to the medical and legal profession, but explicitly excludes privileges and

immunities that relate to banking secrecy.527 Finally, an immunity or privilege under the law of

the executing State is recognized as optional grounds for non-recognition or non-execution in

Article 13, paragraph 1(d) of the Framework Decision.

Thus, like previously analyzed grounds for refusal, (see supra c) (Impossibility to execute the

EEW), this one also relates to a situation where it is legally impossible to execute the EEW

pursuant to the law of the executing State.528 These grounds for refusal can relate to any

immunity or privilege that is recognized under the law of the executing State, it can be the

immunity of the members of the parliament or the privileges given to witnesses or the members

of certain professions.529 As previously stated, it cannot relate to banking secrecy.

526 Proposal for a Framework Decision, p. 24. Immunity or privilege under the law of the executing State which

makes it impossible to execute the freezing order is foreseen as a ground for non-recognition or non-execution in

Article 7, paragraph 1(b) of the Framework Decision on freezing orders. 527 “[…] should not be interpreted in a way which would run counter to the obligation to abolish certain grounds for

refusal in Article 7 of the Council Act of 16 October 2001 establishing, in accordance with Article 34 of the Treaty

on European Union, the Protocol to the Convention on Mutual Assistance in Criminal Matters between the Member

States of the European Union.” Article 7 of the Protocol refers to banking secrecy and states the following: “A

Member State shall not invoke banking secrecy as a reason for refusing any cooperation regarding a request for

mutual assistance from another Member State.” 528 Mavany, 130. 529 Mavany, 130-131, Roger, 37 (Roger, Benjamin, Europäisierung des Strafverfahrens – oder nur der

Strafverfolgung?, GA 2010).

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2. 1. 5. The EEW has not been validated

The Framework Decision EEW did not fully adopt the position taken by the Proposal, where the

scope of the issuing authority – an authority competent to issue an EEW – was limited only to

judicial authorities of the issuing State. The provisions of the Framework Decision also allow the

issuing of an EEW by some other authorities in the issuing State which are not judicial authorities

stricto sensu, but at the same time it introduces the institute of validation procedure pursuant to

which the executing State may request that the EEW issued by a non-judicial authority of the

issuing State has been validated by a judicial authority of that State. If in one of the situations

where the executing State requests the validation of the EEW, the EEW has not been validated,

the executing authority may refuse to recognize or execute the EEW.530

2. 1. 6. Refusal for jurisdictional reasons

Recognition and execution of the EEW can further be refused for jurisdictional reasons. Member

States of the European Union have broadly defined rules on jurisdiction in criminal cases, which

often leads to conflicts of jurisdiction between their criminal justice systems. Criminal

jurisdiction can be based on a number of principles: principle of territoriality, principle of active

and passive personality, protective principle, and principle of universality. In the area of criminal

law cooperation regarding evidence, the Framework Decision resolves these conflicts by giving

precedence to the principle of territoriality, as can be seen from the following rules.

The executing authority may refuse to recognize or execute the EEW if it relates to a criminal

offence which is under the law of the executing State regarded as “having been committed wholly

or for a major or essential part within its territory, or in a place equivalent to its territory”.531 In

the situation regulated by this provision, the executing State bases its criminal jurisdiction on the

principle of territoriality, on the fact that the criminal offence in question has been committed on

its territory. The issuing State bases its criminal jurisdiction on some of the other aforementioned

principles. In the collision between a jurisdiction based on the principle of territoriality and a

530 Article 13, paragraph 1(e) of the Framework Decision. 531 Article 13, paragraph 1(f)(i) of the Framework Decision.

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jurisdiction based on some other principle, the Framework Decision gives precedence to the

former.532

The executing authority may also refuse recognition and execution of an EEW if the jurisdiction

of the issuing State for the offence in question is extra-territorial, and the executing State does not

itself recognize extraterritorial jurisdiction for the same offence.533 In this case, there is no

conflict of jurisdiction between the issuing and the executing State, but the executing State may

still refuse to cooperate with the issuing State if the latter does not base its jurisdiction on the

principle of territoriality, and the executing State does not itself have the jurisdiction for the same

offence when committed outside its territory.

These provisions which foresee the possibility to refuse the recognition and execution of an EEW

for jurisdictional reasons have been welcomed with the assertion that they represent a meaningful

correction of, too widely set criminal jurisdictions of Member States.534 However, at the same

time there have been warnings that problems which demand such rules arise in the area of

criminal jurisdiction and therefore should be solved by appropriate criminal jurisdiction rules at

the European Union level, and not by rules which regulate criminal law cooperation in the area of

evidence.535

532 Framework Decision prescribes a special procedure for these cases. First of all, it obliges the executing authority

to take the decision “in exceptional circumstances and on a case-by-case basis, having regard to the specific

circumstances of the case”. Exempli gratia, it enumerates some of the specific circumstances that have to be taken

into account by the executing authority: whether a major or essential part of the conduct in question has taken place

in the issuing State, whether the EEW relates to an act which is not a criminal offence under the law of the executing

State and whether it would be necessary to carry out a search and seizure for the execution of the EEW (Article 13,

paragraph 3). Further on, it obliges the executing authority to consult Eurojust before taking the decision. The

executing authority is not in an obligation to follow the opinion of the Eurojust, but it is in an obligation to give

reasons for its decision and to inform the Council if it decides not to follow it (Article 13, paragraph 4). 533 Article 13, paragraph 1(f)(ii) of the Framework Decision: „Recognition and execution of the EEW may be refused

in the executing State if the EEW relates to criminal offences which were committed outside the territory of the

issuing State, and the law of the executing State does not permit legal proceedings to be taken in respect of such

offences where they are committed outside that State’s territory“. 534 Roger, 37-38, Mavany, 129. 535 Mavany, 129-130.

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2. 1. 7. National security interests of the executing State

The executing authority may refuse to recognize or execute the EEW if “in a specific case, its

execution would harm essential national security interests, jeopardise the source of the

information or involve the use of classified information relating to specific intelligence

activities”.536 With this provision, the national security interests of the executing State are

protected in a situation where these interests might be jeopardized by the needs of criminal law

cooperation in the area of evidence. The need to protect national security interests is given

priority in relation to the interests of criminal law cooperation in the European Union.

2. 1. 8. Shortcomings in the form

One of the characteristics of the mutual recognition regime is the use of a standardized form. The

use of a standardized form can improve the effectiveness of judicial cooperation in criminal

matters and is rightly seen by the Commission as one of the benefits of the transition from the

mutual legal assistance to the mutual recognition regime.537 The standardized form in which the

European Evidence Warrant has to be issued is given in the annex to the Framework Decision.538

The issuing authority is obliged to issue the EEW in the standardized form. The form needs to be

completed, signed, and its contents certified as accurate by the issuing authority.539 The

Framework Decision also regulates the language in which the EEW needs to be issued – it is the

official language or one of the official languages of the executing State. The issuing State is

under an obligation either to write or to translate the EEW into that language.540 However, the

executing State may, by a declaration deposited with the General Secretariat of the Council, state

536 Article 13, paragraph 1(g) of the Framework Decision. 537 Proposal for a Framework Decision, p. 5. 538 The same approach is adopted as in the Framework Decision on the European arrest warrant and the Framework

Decision on freezing orders, Proposal for a Framework Decision, p. 30. 539 Article 6, paragraph 1 of the Framework Decision. 540 Article 6, paragraph 2 of the Framework Decision.

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that it will accept a translation into one or more official languages of the institutions of the

Union.541

If there are some shortcomings in the form in which the EEW needs to be issued, this can lead to

the postponement of recognition or even to a refusal to recognize or execute the EEW. If the form

is incomplete or manifestly incorrect, the executing authority may postpone the recognition of the

EEW, until such time as the form has been completed or corrected.542 However, if the form has

not been completed or corrected within a reasonable deadline set by the executing authority,

recognition or execution of the EEW may be refused.543


When mutual legal assistance instruments were analysed, the part of the analysis which was

dedicated to the position of the individual in the cross-border gathering of evidence was divided

into two parts: the first part, where the position of the suspect and his defence was analysed, and

the second part, where the position of the individual affected by the evidence gathering measure

was analysed. The same will be done here, in analyzing the position of the suspect and his

defence, the position of the individual in the issuing State, and when analyzing the position of the

individual affected by the evidence gathering measure along with the position of the individual in

the executing State.

The interests of the suspect and his defence, on the one hand, and the interests of the individual

affected by the evidence gathering measure on the other, are the same as the ones presented in the

541 Article 6, paragraph 2 of the Framework Decision. The same approach in relation to languages is taken in other

mutual recognition instruments, for example, in the Framework Decision on the European arrest warrant, see

Proposal for a Framework Decision, p. 19. 542 Article 16, paragraph 1(a) of the Framework Decision. 543 Article 13, paragraph 1(h) of the Framework Decision. By giving the executing authority the possibility to refuse

the recognition or execution of an EEW because of the shortcomings in its form, the Framework Decision has

departed from the position taken in its Proposal. In the Proposal, shortcomings in the form could never lead to the

refusal to recognize or execute the EEW. Pursuant to Article 18, paragraph 1(a) of the Proposal, the execution of the

EEW could have been postponed if “the form provided in the Annex was incomplete”. In that case, the executing

authority had two possibilities: either to “postpone execution until the form has been completed or corrected”

(Article 18, paragraph 2(a) of the Proposal), or to “exempt the issuing authority from this requirement if it considers

that the information provided is sufficient to execute the warrant fairly and lawfully” (Article 18, paragraph 2(b) of

the Proposal).

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analysis of mutual legal assistance instruments. The suspect and his defence have an interest in

seeing that their position in the criminal procedure of the issuing State does not change when the

case involves the gathering of evidence abroad. The individual affected by the evidence gathering

measure has an interest in seeing that his fundamental rights guarantees are upheld when he is the

object of the evidence gathering measure ordered by the issuing State.

With the introduction of the principle of mutual recognition in the area of judicial cooperation

generally, and in the area of cross-border evidence gathering specifically, the possibilities for the

national law enforcement authorities of Member States to effectively prosecute crime with a

transnational dimension have significantly grown. Judicial cooperation is becoming not only

more important than ever before but it is also being used much more often. This also means that

the suspect and his defence in the criminal proceedings of the issuing State more often than

before are faced with a situation where the evidence is gathered abroad. It also means that the

individual affected by the evidence gathering action in the executing State is often subjected to

evidence gathering actions that were ordered abroad. All these considerations show that the

position of the suspect and his defence, as well as the position of the individual affected by the

evidence gathering action, should be paid more attention to in legal instruments based on the

mutual recognition logic than in legal instruments based on the mutual legal assistance logic. The

extent to which FD EEW takes these considerations into account shall be analysed in the

following paragraphs.

3. 1. Position of the defence

The position of the defence in the FD EEW shall be analysed through three questions: a)

possibility for the defence to gather the evidence abroad, b) participation of the defence in the

evidence gathering process in the executing State, and c) possibility to challenge the issuing of an

EEW.

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3. 1. 1. The possibility for the defence to gather the evidence abroad

If the defence and the prosecution are to have equal possibilities to affect the outcome of a

criminal case with a transnational dimension, they both have to be given the possibility to initiate

the proceedings for the gathering of evidence abroad. Provisions of the FD EEW recognize the

public prosecutor as an issuing authority – a judicial authority of the issuing State which is

competent to issue an EIO. This does not mean that the public prosecutor shall act as the issuing

authority in each case. Member States decide which authorities, among the authorities offered by

the FD EEW – a judge, a court, an investigating magistrate, a public prosecutor - shall be the

authority competent to issue an EEW when that State is acting as the issuing State.544

It is clear that the suspect or his defence lawyer cannot act as issuing authorities, because they are

not State bodies with the competence to order the gathering of evidence in a national or

transnational context. However, they should be given the possibility to initiate the proceedings

for the gathering of evidence abroad, when they have the knowledge that evidence helpful to the

defence is located on the territory of another Member State. FD EEW does not take these

considerations into account and does not recognize the right of the defence to request that

evidence located abroad be gathered.

3. 1. 2. Participation of the defence in the evidence gathering process in the executing State

Equally important as the possibility for the defence to request the gathering of evidence abroad is

the possibility to participate in the evidence gathering process in the executing State. By

participating in the execution of an EEW the defence exercises its participatory rights in relation

to the gathering of evidence, but also acquires information which can be useful in the evaluation

of the admissibility of the gathered evidence in the criminal procedure of the issuing State.

FD EEW does not take these considerations into account either, and does not guarantee a right or

a possibility for the defence to participate in the gathering of evidence abroad.

544 Article 2 (c)(i) FD EEW.

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3. 1. 3. Possibility to challenge the issuing of the EEW

The defence also needs to have the possibility to challenge the issuing of an EEW. This is

especially important in light of the fact that the FD EEW prescribes conditions for issuing the

warrant. Pursuant to the FD EEW, in order for the warrant to be issued, the issuing authority

needs to be satisfied that evidence sought is necessary and proportionate for the purpose of the

proceedings in relation to which a warrant is issued and that it would be available under the law

of the issuing State in a comparable case if they were available on the territory of the issuing

State, even though different procedural measures might be used.545

The provision of the FD EEW which regulates the question of legal remedies prescribes that the

substantive reasons for issuing the EEW, including whether the conditions for its issuing have

been met, may only be challenged in an action brought before a court in the issuing State.

However, the availability of legal remedies is not guaranteed by the FD itself, but depends on the

national criminal law of Member States. The FD EEW obliges the issuing State to ensure the

applicability of legal remedies which are available in a similar domestic case.546

3. 2. Position of the individual affected by the EEW

In the mutual recognition regime of cross-border evidence gathering, an evidence gathering

action is ordered pursuant to the law of the issuing State, but it is executed in the territory and

pursuant to the law of the executing State. When intrusive evidence gathering actions are

undertaken in the territory of the executing State pursuant to an EEW, an individual affected by

these actions is subjected to foreign substantive and procedural criminal laws, which have

different fundamental rights guarantees that the criminal laws of the State he is situated in. Such a

situation is not problematic when the fundamental rights guarantees of the issuing State are

higher than those of the executing State. Quite a different situation appears when the fundamental

rights guarantees of the issuing State are lower than those of the executing State. In the latter

case, an individual situated in the territory of the executing State is subjected to fundamental

545 Article 7 FD EEW, 546 Article 18 (2) FD EEW.

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rights limitations to a degree higher than the one which is allowed pursuant to the law of the

executing State.

The FD EEW takes these considerations into account in a number of its provisions which may be

seen as a fundamental rights guarantee. These provisions can be divided into three groups: i)

choice of the evidence gathering action as a fundamental rights guarantee, ii) fundamental rights

oriented grounds for refusal, and iii) legal remedies.

3. 2. 1. Choice of the evidence gathering action as a fundamental rights guarantee

In the regime created by the FD EEW, the issuing State does not make a decision about the

evidence gathering action that is going to be undertaken on the territory of the executing State.

The issuing State only decides, orders, that a certain type of evidence which comes within the

scope of the FD EEW, objects, documents or data, is gathered on the territory of the executing

State. The executing State is obliged to fulfil the order issued by the issuing State, but is free to

decide about the manner in which it is going to do so. The executing State decides about the

evidence gathering action that is going to be undertaken on its territory in execution of an EEW.

This enables the executing State to adapt the EEW to the demands arising out of its legal order.

When making such a decision the executing State is obliged to consider fundamental rights

implications of the evidence gathering action. The text of the FD EEW obliges the executing

State to use the least intrusive means available to obtain the objects, documents and data

sought.547

3. 2. 2. Fundamental rights oriented grounds for refusal

Among the grounds for refusal of cooperation, there are some which undoubtedly have

fundamental rights considerations. Fundamental rights oriented grounds for refusal include the

application of the ne bis in idem principle, double criminality requirement, immunity or privilege

547 Recital 12 FD EEW.

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under the law of the executing State, and a refusal to execute an EEW which has not been

validated by a judicial authority stricto sensu.

3. 2. 3. Legal remedies

The individual affected by the evidence gathering action undertaken in the execution of an EIO

must have the possibility to challenge it, especially when the evidence gathering action

undertaken is an intrusive one. Provisions of the FD EEW guarantee the right to a legal remedy

against the decision and execution of an EEW to any interested party. Such a legal remedy must

be provided for in the legal orders of Member States, but Member States are free to limit the use

of legal remedies to situations where the EEW is executed using a coercive measure.548

The individual affected by the evidence gathering action undertaken in the execution of an EEW

can challenge not only recognition and execution of an EEW, but also its issuing, by challenging

the existence of conditions for issuing an EEW. However, such an action can be brought only

before a court in the issuing State.549 Since the individual affected by the evidence gathering

action is situated in the territory of the executing State, this significantly limits his right to an

effective legal remedy against the decision to issue an EEW.


The purpose of the Framework Decision on the European Evidence Warrant was to further

introduce the principle of mutual recognition in the area of cross-border evidence gathering in EU

criminal law. In order to achieve this goal, instead of a two-fold regime created by the

Framework Decision on Freezing Orders, pursuant to which the gathering of evidence on the

territory of the executing State is regulated by the mutual recognition regime, and its transfer to

the territory of the issuing State by the mutual legal assistance regime, a single regime is created.

In the single regime both, the gathering of evidence in the territory of the executing State and its

transfer to the territory of the issuing State is regulated by the mutual recognition regime.

548 Article 11 (1) FD EEW. 549 Article 18 (2) FD EEW.

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However, the Framework Decision on the European Evidence Warrant has a number of

limitations. First, its scope of application is limited – it does not apply to all types of evidence

which are situated on the territory of the executing State, but only to objects, documents and data.

This means that in relation to all other types of evidence, which are excluded from the scope of

application of the Framework Decision on the European Evidence Warrant, mutual legal

assistance regime will continue to apply. Second, the Framework Decision on the European

Evidence Warrant brings a number of specificities in the way a mutual recognition regime is

applied. A mutual recognition regime is applied in the version of “mitigated mutual recognition”,

which can be seen from the following: i) in the Framework Decision on the European Evidence

Warrant, the decision on the evidence gathering action to be undertaken on the territory of the

executing State is not made by the issuing authority, but by the executing authority, ii) the

Framework Decision introduces a number of safeguards the purpose of which is to facilitate the

transition from the mutual legal assistance to the mutual recognition regime. These safeguards

apply both in the phase of the issuing of the EEW and at the phase of its execution. They are

oriented towards the Member States, by taking account of the differences in their criminal laws,

and towards the individual affected by the evidence gathering action, by taking account of

differences in the applicable human rights standards between Member States.

Due to the principle of mutual recognition not being applied in relation to all types of evidence

and because it was applied in the version of “mitigated mutual recognition”, it was only logical to

expect the adoption of another mutual recognition instrument in the area of cross-border evidence

gathering. However, the Proposal for the adoption of such an instrument came before it was

expected, in April 2010 the Proposal for a Directive on the European Investigation Order was put

on the table.

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III. ANALYSIS OF THE DIRECTIVE REGARDING THE EUROPEAN

INVESTIGATION ORDER

The Directive defines the European Investigation Order (EIO) as a judicial decision which has

been issued or validated by a judicial authority of a Member State (“issuing State”) to have one or

several specific investigative measure(s) carried out in another Member State (“the executing

State”) with a view to obtain evidence.550 However, the EIO may be issued not only in order to

carry out one or several investigative measures on the territory of another Member State, it may

also be issued in order to obtain evidence that is already in the possession of the competent

authorities of the executing State.551

Like in all other mutual recognition instruments, a judicial decision issued by a judicial authority

of the issuing State needs to be laid out in a unified form, which is attached in Annex A of the

Directive. The form needs to be completed, signed, and its content certified as accurate and

correct by the issuing authority.552 The Directive also regulates the question of language in which

an EIO needs to be issued – the competent authority of the issuing State needs to translate an EIO

into the official language of the executing State or any other language indicated by the executing

State.553

Regarding the content of the EIO, it needs to contain in particular, the information relating to: i)

the issuing authority and, where applicable, the validating authority, ii) the object and the reasons

for the EIO, iii) the necessary information available on the person(s) concerned, iv) a description

of the criminal act, which is the subject of the investigation or proceedings, and the applicable

provisions of the criminal law of the issuing State, and v) description of the investigative

measure(s) requested and the evidence to be obtained.554

550 Article 1 (1). 551 Article 1 (1). See also Recital 12 of the Preamble. 552 Article 5 (1). 553 Article 5 (3). Pursuant to Article 5 (2) each Member State shall indicate the language(s) which, among the official

languages of the institutions of the Union and in addition to the official language(s) of the Member State concerned,

may be used for completing or translating the EIO when the Member State concerned is the executing State. Pursuant

to Article 33 (1)(b) each Member State shall by 22 May 2017 notify the Commission of the languages accepted in

accordance with Article 5 (2). In accordance with Recital 14 of the Preamble, when making a declaration concerning

the language regime, Member States are encouraged to include at least one language which is commonly used in the

Union other than their official language(s). 554 Article 1 (1)(a)-(e).

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1. Position of the issuing State

The issuing State is the Member State in which the EIO is issued.555 In relation to the position of

the issuing State, the Directive regulates the following matters: a) scope of application, b)

authority competent to issue the EIO (issuing authority), c) conditions for issuing an EIO, d)

transmission of the EIO, e) EIO related to an earlier EIO, and f) the way in which the EIO is

executed.

1. 1. Scope of application

The EIO has a comprehensive scope of application as it covers any investigative measure. Only

the setting up of a joint investigation team and the gathering of evidence within such a team are

excluded from its scope of application. These measures will remain to be governed by the

respective provisions of the EU-MLA-2000556 and of the Council Framework Decision on Joint

Investigation Teams.557 Another measure which is excluded from the scope of application of the

EIO is cross-border surveillance, which will remain to be governed by Article 40 CISA.558

An EIO may be issued primarily in respect of criminal proceedings in the issuing State. The

Directive defines criminal proceedings as proceedings brought by, or that may be brought before,

a judicial authority in respect of criminal offences under the national law of the issuing State.559

An EIO may be issued at all stages of criminal proceedings, including the trial phase.560

However, an EIO may be issued not only in respect of criminal proceedings, but also in respect of

proceedings brought by administrative or judicial authorities in respect of acts punishable under

the national law of the issuing State by virtue of being infringements of the rules of law and

where the decision may give rise to proceedings before a court having jurisdiction, in particular,

555 Article 2 (a) of the Directive. 556 Setting up of a joint investigation team and the gathering of evidence within such a team are regulated in Article

13 of EU-MLA-2000. 557 However, there remains a situation in which provisions of the Directive shall be applicable to the work of a joint

investigation team – where the joint investigation team needs investigative measures undertaken in a Member State

other than those which have set up the team, an EIO shall be sent to that Member State by the competent authorities

of the State of operations, see Article 3 of the Directive. 558 Recital 9 of the Preamble. 559 Article 4 (a) of the Directive. 560 See Recital 25 of the Preamble.

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in criminal matters.561 These proceedings are not criminal proceedings, proceedings in respect of

criminal offences, but administrative or judicial proceedings in relation to other wrongdoings

which are not considered criminal offences. In the German criminal justice system, these other

wrongdoings are included within the notion of Ordnungswidrigkeiten.562 As a consequence of

such a broad scope of application, even minor wrongdoings may give rise to transnational

investigative measures, which is problematic from the point of view of the principle of

proportionality.563 An EIO may also be issued in respect of all aforementioned (criminal and non-

criminal) proceedings which relate to offences or infringements for which a legal person may be

held liable or punished in the issuing State. The latter provision applies notwithstanding the fact

that criminal liability of legal persons is not a recognized concept in all EU Member States. This

means that even those Member States, like for example Germany, which do not recognize the

criminal responsibility of legal persons, shall be under an obligation to recognize and execute an

EIO emanating from another Member State which recognizes the concept and has issued in EIO

in respect of proceedings which relate to offences or infringements of a legal person.564

If we compare the provisions of the Directive EIO with the provisions of the FD EEW, two

conclusions can be made. In relation to the evidence gathering actions that may be the object of

assistance, the scope of application of the Directive EIO is significantly different than the scope

of application of the FD EEW. First of all, coming back to the positions of the mutual recognition

model of judicial cooperation in criminal matters, the Directive EIO determines its scope of

application not in relation to the evidence which needs to be collected on the territory of the

executing State, but in relation to the evidence gathering action that needs to be undertaken there.

Second, while the scope of application of the FD EEW was limited only to objects, documents

and data, the scope of application of the Directive EIO covers all evidence gathering

(investigative) actions. With regard to proceedings in relation to which a warrant or an order may

be issued, there is no difference in the scope of application of the FD EEW and the Directive

EIO.

561 Article 4 (b) and (c) of the Directive. 562 Bachmaier Winter, Lorena, The Proposal for a Directive on the European Investigation Order and the Grounds

for Refusal: A Critical Assessment, in Ruggeri, Stefano (ed.), Transnational Evidence and Multicultural Inquiries in

Europe, Springer, 2014, p. 80. 563 Zimmermann et al., 2011, p. 70-71. 564 Mavany, Markus, Die Europäische Bewisanordnung und das Prinzip der gegenseitigen Anerkennung, C. F.

Müller, 2012, p. 97.

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1. 2. Authority competent to issue the EIO (issuing authority)

As previously mentioned, the EIO has been defined as a judicial decision. Based on that, it would

only make sense to conclude that an EIO can be issued only by a judicial authority of the issuing

State.565 However, the provisions of the Directive offer a different solution.

1. 2. 1. Judicial and non-judicial authorities

The Directive starts by defining the issuing authority as a judge, a court, an investigative judge or

a public prosecutor competent in the case concerned.566 All the authorities mentioned can be

regarded as judicial authorities of the issuing State. However, pursuant to the Directive, the

issuing authority may not be the only authority mentioned, but also any other competent authority

as defined by the issuing State which, in the specific case, is acting in its capacity as an

investigating authority in criminal proceedings with competence to order the gathering of

evidence in accordance with national law.567 During the proceedings in the Council, Member

States’ delegations were given a questionnaire in order to specify which authorities may be

considered as “other competent authorities” pursuant to the Directive. The given answers indicate

a wide variety of authorities including police authorities, tax and customs authorities, and other

specialized administrative authorities competent for administrative penalties.568

Such a broad definition of an issuing authority has been criticised. In some Member States certain

investigative measures can only be ordered by a judge. When these Member States are acting as

executing States, they will be obliged to execute such an investigative measure, even though it

has been authorised by an authority other than a judge in the issuing State.569 Taking into account

that authorization of a judge serves to guarantee the legality, impartiality and proportionality of

serious interferences with fundamental rights, absence of such an authorization in the issuing

565 Zimmermann et al., 2011, p. 74. 566 Article 2 (c) (i) of the Directive. 567 Article 2 (c) (ii) of the Directive. 568 Council doc. 13049/10. 569 Rafaraci, Tommaso, General Considerations on the European Investigation Order, in Ruggeri, Stefano (ed.),

Transnational Evidence and Multicultural Inquiries in Europe, Springer, 2014, p. 39, Schünemann, Bernd, The

European Investigation Order: A Rush into the Wrong Direction, in Ruggeri, Stefano (ed.), Transnational Evidence

and Multicultural Inquiries in Europe, Springer, 2014, p. 32.

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State may significantly weaken the position of the individual compared to national proceedings in

the executing State.570 However, provisions of the Directive seem to offer a solution for this

situation, providing the executing State a possibility to undertake a court authorization in the

proceedings for the execution of an EIO, when such an authorization is provided by its own

law.571

1. 2. 2. Validation procedure

Even though the choice of the authorities competent to issue an EIO is completely left to the

issuing State, in the case when an authority other than a judicial one is acting as an issuing

authority, the Directive provides for a validation procedure. Whenever an EIO has been issued by

“any other competent authority” in the issuing State, it shall, before it is transmitted to the

executing authority, be validated by a judge, court, investigating judge or a public prosecutor in

the issuing State.572 In comparison to the FD EEW the Directive takes a step forward: pursuant to

the FD EEW validation procedure was not mandatory and its application was made dependent

upon Member States declaration.573 Pursuant to the Directive, a validation procedure is

mandatory in all cases.

An example of the validation procedure can be seen in how difficult the negotiation process in

the Council was which preceded the adoption of the Directive. The intention of the drafters of the

Initiative for the adoption of a Directive regarding the EIO was to abandon the validation

procedure, which was seen as a danger to the efficiency of judicial cooperation in criminal

matters. In the text of the Directive which was adopted, the validation procedure made a

comeback and took an even more prominent place than in the FD EEW, in the Directive the EIO

validation procedure is a mandatory step in the issuing of an EIO.

570 Zimmermann et al., 2011, p. 74. 571 Article 2 (d) of the Directive. 572 Article 2 (d) of the Directive. 573 Article 11 (5) FD EEW.

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1. 2. 3. Authorities competent to issue an EIO in administrative proceedings

An EIO may be issued not only in relation to criminal proceedings, but also in relation to

proceedings brought by administrative or judicial authorities in respect of minor wrongdoings,

which are not considered criminal offences. This means that in certain cases authorities

competent to issue an EIO shall be administrative authorities. Their competence to act as issuing

authorities seems to be covered by Article 2 (c) (ii) of the Directive, however, a closer look at this

provision raises doubts. Namely, pursuant to that provision, an issuing authority may be any other

competent authority which, in a specific case, is acting in its capacity as an investigating

authority in criminal proceedings. This provision seems to be too narrow, as it excludes from the

notion of issuing authorities those authorities which are competent to act as investigating

authorities in non-criminal proceedings which also come under the scope of application of the

Directive. In order to remedy this shortcoming, the words “in criminal proceedings” should be

erased from Article 2 (c) (ii) of the Directive, to make it clear that the issuing authority may be

any authority which is acting in its capacity as an investigating authority, both in criminal and

non-criminal proceedings which come under the scope of application of the Directive.

1. 2. 4. Issuing of an EIO by an authority which is not an issuing authority

If an EIO is issued by an authority which is not an issuing authority indicated by the issuing

State,574 the executing authority shall return the EIO to the issuing authority.575 Although this

provision is not situated as grounds for non-recognition or non-execution of an EIO, it represents

a de facto refusal to recognize or execute an EIO. In order for it to be valid, such as being

recognized and executed by the executing authority, an EIO needs to be issued by the issuing

authority. While acting in accordance with the rules on competence to issue an EIO is a

precondition for its validity.

574 Member States are obliged, pursuant to Article 33 (1)(a) of the Directive, to notify the Commission by 22 May

2017, which authority or authorities are, in accordance with its national law, competent to act as issuing authorities. 575 Article 9 (3) of the Directive.

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The Directive contains a very broad conception of an issuing authority, which covers not only

judicial authorities of the issuing State, but also non-judicial authorities if they are competent

investigating authorities in a specific case. Within the set boundaries, which are very broad, the

issuing State is completely free to decide which authorities shall act as issuing authorities in the

case of an EIO. This is in accordance with the principle of mutual recognition, pursuant to which

the questions relating to the organization of national judicial systems are in the competence of the

issuing State, and need to be accepted by the executing State.

However, taking into account the fact that issuing authorities have enormous power in

transnational evidence gathering – they can order the gathering of evidence abroad, and the fact

that Member States’ laws regarding the organization of their criminal justice system and the

competence of individual authorities to decide on undertaking certain investigative measures are

very different, the Directive foresees a mandatory validation procedure for all cases in which the

authority issuing an EIO is not a judicial authority of the issuing State. Validation procedures in

the context of an EIO serves to guarantee a certain level of equivalence between the competent

authorities of the issuing and the executing State, and in this sense it represents an attempt to

mitigate the effects of the principle of mutual recognition.

However, even with the validation procedure, the scope of the authorities which can issue or

validate an EIO is very broad and it includes judges, courts, investigating judges and public

prosecutors. This still means that transnational investigative measures can be ordered without the

authorization of a judge. However, the Directive seems to offer a certain level of protection for

those Member States that require the authorization of a judge for undertaking intrusive

investigative measures. The authorization of a judge can be effectuated in the executing State,

during the proceedings for the execution of an EIO. This provision, although welcomed from the

position of the executing Member State and from the standpoint of the protection of individual

rights, also represents an absolute contradiction to the principle of mutual recognition.

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1. 3. Conditions for issuing the EIO

Before an EIO is issued, the issuing authority needs to establish that the conditions for the issuing

of an EIO have been met. The Directive prescribes two conditions for issuing an EIO: i)

availability under domestic law and ii) necessity and proportionality.

1. 3. 1. Availability under domestic law

The first condition that needs to be fulfilled before issuing an EIO is the availability under

domestic law of the issuing State of the investigative measure(s) indicated in the EIO. Article 6

(1) (b) of the Directive prescribes that an EIO may only be issued where the investigative

measure(s) indicated in the EIO could have been ordered under the same conditions in a similar

domestic case.

The same provision was contained in Article 7 (b) of the FD EEW. However, in this provision

availability under domestic law referred not to the investigative measure to be undertaken but to

the evidence to be collected, which was in line with the logic of the FD EEW. The Proposal for a

Directive on the EIO did not contain the same provision, and was severely criticised for it.576

The issuing authority evaluates the availability of the indicated investigative measure exclusively

under its domestic law and only when, in the case concerned, such a measure could have been

ordered under its domestic law, can it be indicated in the EIO. The purpose of this provision is to

disable the circumvention of human rights protection standards of the issuing State,577 in other

words to prevent forum-shopping.578 This may cause the investigating authorities without this

provision, to have recourse to make use of lower human rights standards in the executing State

for investigative purposes. A provision on the availability of the indicated investigative measure

under the domestic law of the issuing State is fully in line with the mutual recognition logic,

576 See, for example, Peers, who concludes that dropping the requirement of availability under domestic law would

allow blatant „forum shopping“, in Peers, 2010, p. 6-7. 577 Ruggeri, Stefano, Beweisrechtshilfe und Grundrechtseingriffe am Beispiel des Richtliniensvorschlag einer

europäischen Ermittlungsanordnung, ZStW, 2/2013, p. 414. 578 Mavany, 2012, 104-105.

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pursuant to which the admissibility of the investigative measure is determined exclusively by the

domestic law of the issuing State. Although the required investigative measure will be executed

within the transnational context, its availability is evaluated only pursuant to the national

standards of the issuing State. Pursuant to the prevailing opinion, availability of the requested

measure is also a precondition for issuing a request for assistance in traditional law of mutual

legal assistance.579

1. 3. 2. Necessity and proportionality

Besides the availability of the indicated investigative measure under its law, the issuing authority

also needs to make sure that the issuing of an EIO is necessary and proportionate for the purpose

of the proceedings in relation to which an EIO may be issued. Taking into account the rights of

the suspected or accused person,580 this requirement relates in fact to the proportionality of an

EIO, since necessity, together with suitability and commensurability, is one of the components of

the principle of proportionality.581

The same provision was contained in Article 7 (a) of the FD EEW. The Proposal for a Directive

on the EIO did not contain the provision, but it was later introduced into the text and adopted in

its final version.

Besides Article 6 (1)(a), the Directive contains further instructive provisions on the

proportionality of an EIO. An interesting provision is contained in Recital 11 of the Preamble,

which states that “[t]he EIO should be chosen where the execution of an investigative measure

seems proportionate, adequate and applicable to the case in hand”, and that the issuing authority

should to that end, “ascertain whether the evidence sought is necessary and proportionate for the

purpose of the proceedings, whether the investigative measure chosen is necessary and

proportionate for the gathering of the evidence concerned, and whether, by means of issuing an

EIO, another Member State should be involved in the gathering of evidence”.

579 Mavany, 2012, 106. 580 Article 6 (1)(a) of the Directive. 581 Krapac, Davor, Kazneno procesno pravo, Knjiga prva: Institucije, Narodne novine, Zagreb, 2012, § 397-398. In

the same sense, but in relation to the FD EEW, see Mavany, 2012, 107.

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What should be understood under the notion of proportionality of an EIO? First of all, it needs to

be noticed that the provision relates not to the proportionality of an investigative measure

indicated in the EIO, but to the proportionality of an EIO. Proportionality of the investigative

measure indicated in the EIO is evaluated in the context of availability of the investigative

measure under domestic law. Any measure which represents an interference of the State into the

rights and freedoms of an individual needs to, pursuant to the jurisprudence of the European

Court for Human Rights, be proportionate.582 The proportionality of an EIO should primarily be

evaluated in relation to the transnational context in which it is executed. Therefore, the main

difference between proportionality of an investigative measure indicated in the EIO and the

proportionality of an EIO is the context in which they are evaluated: proportionality of the

investigative measure is evaluated in a national, and proportionality of an EIO in a transnational

context.

However, is there a difference and what is the difference between proportionality in a national

and a transnational context? The difference exists in the differing position of the suspect and his

defence in a criminal proceeding that has a purely national context on the one hand, and a

criminal proceeding that also includes the elements of a transnational context on the other. In a

case which also includes the transnational context the suspect and his defence are faced with

numerous new and demanding challenges, both practical and legal ones: the organization of the

defence in two states, having to deal with different languages while dealing with two different

sets of substantive and procedural criminal laws. Having this in mind, it can be concluded that a

measure that can be considered proportionate in a national context, does not also have to be

considered proportionate in a transnational context.583 The text of the Directive also indicates this

reasoning when, in prescribing the criteria for the evaluation of proportionality of an EIO, it

states that the rights of the suspected or accused person need to be taken into account.584

582 On the principle of proportionality in the jurisprudence of the European Court for Human Rights, see Bachmaier

Winter, Lorena, The Role of Proportionality Principle in Cross-Border Investigations Involving Fundamental Rights,

in Ruggeri, Stefano (ed.), Transnational Inquiries and the Protection of Fundamental Rights in Criminal

Proceedings, Springer, 2013, p. 91-95. 583 Zimmermann et al., 2011, p. 71. 584 Article 6 (1)(a) of the Directive.

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1. 3. 3. Role of the executing authority

Pursuant to the principle of mutual recognition, the conditions for issuing an order or a warrant

are assessed by the issuing authority. The role of the executing authority is very limited: the

executing authority under an obligation to execute an order/warrant issued by the issuing

authority, unless it invokes one of the limited number of grounds for refusal of recognition or

execution. However, the executing authority is not entitled to question the correctness of the

decision of the issuing authority to issue an order/warrant.

The Directive on the EIO abandoned this mutual recognition logic and gave the executing

authority the power to reassess the decision of the issuing authority to issue an EIO. The

executing authority may reassess whether the conditions for issuing an EIO have been met. If the

executing authority has reasons to believe that the conditions for issuing an EIO (availability,

proportionality) have not been met, it may start a consultation process with the issuing authority.

The goal of this process is to reassess the importance of executing an EIO. The result of the

consultation process can be twofold: either the executing authority will continue the process of

execution of an EIO, if the authorities concerned found that the conditions for issuing an EIO

have been met, or the issuing authority will withdraw an EIO, if the authorities concerned have

found that the conditions for issuing an EIO have not been met.585


There are two conditions which have to be met in order to issue an EIO. Both conditions relate to

different things and are evaluated pursuant to different criteria.

The first condition is availability. The issuing authority needs to evaluate the availability of the

investigative measure indicated in the EIO. Availability of the measure is evaluated in a purely

national context: the issuing authority needs to assess whether the indicated investigative measure

could have been ordered in a similar factual case under its own law. This means that the issuing

authority can ask the executing authority only to undertake those investigative measures which

585 Article 6 (3) of the Directive.

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would in a similar case be in concreto available under the law of the issuing State. This means

that the legal boundaries for transnational investigations in the EU are determined by the law of

the issuing State. As previously argued, this approach fully conforms to the mutual recognition

logic.

The second condition is proportionality. Unlike availability, it does not relate to the investigative

measure indicated in the EIO, but to the EIO itself. The issuing of an EIO itself needs to be

proportionate. This means that the European legislator took into account the fact that the position

of the suspect and his defence is significantly different if the case exceeds national boundaries,

and crosses from a purely national into a transnational context. Standards for proportionality in a

transnational context are higher than the standards of proportionality in a national context, which

indicates exceptionality of an EIO.

It is very important to notice that the Directive openly abandoned one of the cornerstones of the

mutual recognition principle – namely, the absence of the authority on the part of the executing

authority to reassess the decision of the issuing authority to issue an EIO. Blind mutual trust has

been replaced by the power of the executing authority to question the correctness of the decision

of the issuing authority to issue an EIO, both in relation to the availability under domestic law

and transnational proportionality.

1. 4. Transmission of an EIO

After an EIO has been issued, it has to be transmitted from the issuing to the executing State. The

Directive contains in Article 7 a provision on transmission which is similar to other mutual

recognition instruments.586 The rule is direct transmission between the issuing to the executing

authority, by any means capable of producing a written record. However, Member States still

have the possibility open to them to designate one or more central authorities to assist competent

(issuing and executing) authorities. Central authorities may also be made responsible for the

administrative transmission and receipt of an EIO. The rules which apply to the transmission of

an EIO also apply to all further official communication regarding an EIO, as well as to solving all

586 See, for example, Article 8 FD EEW.

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difficulties concerning the transmission or authenticity of any document needed for the execution

of an EIO.

1. 5. An EIO related to an earlier EIO

The Directive also contains a special provision on a supplementary EIO – an EIO that relates to

an earlier EIO. Such a provision was already present in previous mutual recognition

instruments.587 Such an EIO can be issued in two ways: i) in the ordinary way, in which an EIO is

normally issued,588 and ii) by the issuing authority which is present on the territory of the

executing State and assists in the execution of an earlier EIO, pursuant to Article 9 (4) of the

Directive.589 In the latter case, the issuing authority needs to certify that the conditions for issuing

an EIO (availability, proportionality) have been met. If the issuing authority is a non-judicial one,

an EIO needs to be validated by a judicial authority before it is directly addressed to the

executing authority.590

1. 6. The way in which the EIO is executed

1. 6. 1. Decision on the investigative measure to be undertaken

The EEW was focused on the evidence to be collected and the Directive on the EIO takes a

different approach by focusing on the investigative measure to be executed. This change in

approach is a result of a conclusion that it is the issuing, and not the executing, authority that is

best placed to decide which investigative measure is to be used in order to achieve the objectives

of an EIO. The issuing authority is the one who has better knowledge about the details of the

proceedings which are under way in the issuing State and in relation to which an EIO is issued.591

This approach is fully in line with the principle of mutual recognition, the issuing authority

587 See, for example, Article 9 FD EEW. 588 In that case, the fact that it is an EIO which relates to an earlier EIO has to be indicated in the Section D of the

EIO form. See Article 8 (1) of the Directive. 589 Article 8 (2) of the Directive. 590 Article 8 (3) of the Directive. 591 See Recital 10 of the Preamble of the Directive.

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decides on the investigative measure to be undertaken following the criteria prescribed in its

domestic law, and the executing State is obliged to execute the investigative measure indicated,

notwithstanding the differences between the laws of the issuing and the executing State.

1. 6. 2. Recourse to a different kind of an investigative measure

However, the Directive on the EIO did not fully follow this approach, by giving the executing

authority the possibility to have recourse to a different kind of investigative measure than the one

indicated in the EIO by the issuing authority. This mechanism shows that the EU legislator was

aware of the fact that the full implementation of the principle of mutual recognition in the area of

evidence is premature, taking into account the differences in Member States’ substantive and

procedural criminal laws.592

The mechanisms for recourse to a different kind of investigative measure enable dialogue

between the laws of the issuing and the executing State.593 Instead of refusing to recognize or

execute an EIO, the executing authority is given a possibility to adapt the EIO to the demands of

its legal order.594

There are three situations in which the executing authority can have recourse to a different kind

of investigative measure. In two situations, the executing authority is obliged to do so: a) where

the investigative measure indicated in the EIO does not exist under the law of the executing State,

and b) where the investigative measure indicated in the EIO would not be available in a similar

domestic case. In situation c) where the investigative measure selected by the executing authority

would achieve the same result by less intrusive means, the executing authority is not obliged to

have recourse to a different kind of investigative measure, but may do so. Before the executing

authority decides to have recourse to a different kind of investigative measure it is in d)

obligation to inform the issuing authority for certain investigative measures e) exclusion of the

possibility to have recourse to a different kind of investigative measure applies. As a last option,

592 Ruggeri, 2013, 416-417. 593 Ruggeri, 2013, 418. 594 Bachmaier Winter, 2014, 76.

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where it is not possible to substitute the measure indicated in the EIO by another measure

existing and available under the law of the executing State, the executing authority has the

possibility to apply f) de facto refusal to recognize or execute an EIO.

1. 6. 2. 1. The measure does not exist under the law of the executing State

The first situation in which the executing authority can have recourse to a different kind of

investigative measure is where the measure indicated in the EIO does not exist under the law of

the executing State.595 In that situation the executing authority shall have recourse to a different

kind of investigative measure, in other words it is obliged to do so. This means that a measure

indicated in the EIO which does not exist under the law of the executing State shall never be

executed in the territory of the executing State pursuant to an EIO.

Such situations are possible and a result of differences between Member States’ criminal

procedural laws. For example, the issuing authority may indicate bugging a domicile and

recording the conversations held in that private space, but such a measure might not exist under

the law of the executing State. In that case, the executing authority shall not refuse to recognize

or execute an EIO, but shall have recourse to a different kind of investigative measure, which

exists under its law, and which can achieve equal or similar results. In this case, it might be

telephone tapping.596

1. 6. 2. 2. The measure would not be available in a similar domestic case

In this situation, the measure indicated in the EIO exists under the law of the executing State, but

would not be available in a similar domestic case.597 Pursuant to this provision, the executing

595 Article 10 (1)(a) of the Directive. 596 Example given by Bachmaier Winter, in Bachmaier Winter, 2014, 75-76. Intrusive investigative measures, which

are connected with the use of new technologies in criminal procedure, are not necessarily univocally accepted in the

national legal orders of Member States. For example, on line search of computers is not allowed in Finland,

Luxembourg and the Netherlands, and is expressly forbidden in Poland and Italy, see Ligeti, Katalin; Simonato,

Michele, The European Public Prosecutor’s Office: Towards a Truly European Prosecution Service, New Journal of

European Criminal Law, 1-2 (2013), p. 19 (footnote 35). 597 Article 10 (1)(b) of the Directive.

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authority needs to assess the availability of the investigative measure indicated in the EIO under

its national law. If the measure indicated in the EIO is not available under the law of the

executing State, the executing authority shall have recourse to a different kind of investigative

measure which it is obliged to do.

However, how shall the executing authority assess the availability of the investigative measure

indicated in a similar domestic case? An interpretative provision is given in Recital 10 of the

Preamble and pursuant to that provision availability should refer to occasions where the indicated

investigative measure exists under the law of the executing State, but is only lawfully available in

certain situations, for example where the investigative measure can only be carried out for

offences of a certain degree of seriousness, against persons for whom there is already a certain

level of suspicion or with the consent of the person concerned.598

If the measure indicated in the EIO is not available in a similar domestic case, the executing

authority shall not refuse to recognize or execute an EIO, but shall have recourse to a different

kind of investigative measure, which would be available in a similar domestic case.

The measure indicated in an EIO needs to be available under both, the law of the issuing and the

law of the executing State. Only when the measure is available under the laws of both

cooperating States, can it be executed pursuant to an EIO.599

1. 6. 2. 3. A less intrusive measure

The third situation in which the executing authority can have recourse to a different kind of

investigative measure is where the measure selected by the executing authority would achieve the

same result by less intrusive means that the investigative measure indicated in the EIO.600 In this

situation, the executing authority is not obliged to have recourse to a different kind of

598 See also Allegrezza, Silvia, Collecting Criminal Evidence Across the European Union: The European

Investigation Order between Flexibility and Proportionality, in Ruggeri, Stefano (ed.), Transnational Evidence and

Multicultural Inquiries in Europe, Springer, 2014, p. 64. 599Rafaraci calls this „double procedural legality“ of the investigative measure indicated in the EIO, in Rafaraci,

2014, 39-41. 600 Article 10 (3) of the Directive.

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investigative measure, but may do so. The measure indicated in the EIO exists under the law of

the executing State and would be available in a similar domestic case, but the law of the

executing State disposes of another investigative measure which can still achieve the same goal

by less intrusive means. By doing this, the executing authority is acting in accordance with the

principle of proportionality.601 It should be understood that the executing authority needs to make

recourse to the least intrusive investigative measure, which is in line with the principle of

proportionality.

1. 6. 2. 4. Obligation to inform the issuing authority

The issuing authority decides on the investigative measure indicated in an EIO pursuant to its

own law and having in mind the needs of the national proceedings in relation to which an EIO is

issued. The final purpose of the EIO is to use the evidence gathered by the investigative measure

indicated in an EIO in domestic proceedings of the issuing State. However, the admissibility of

evidence in national proceedings of the issuing State depends on the way in which the evidence

was collected. Among other factors, it depends on the investigative measure which was

undertaken in order to collect the evidence. If the executing authority makes recourse to a

different kind of investigative measure, this might make the evidence collected inadmissible in

the national proceedings of the issuing State602 or it might even endanger the investigation as a

whole. For example, if the issuing authority indicated a covert investigative measure, and the

executing authority made recourse to an investigative measure which is not covert, although the

evidence so collected might be the same, the consequences for the success of the investigation are

clearly different.603

In order to avoid such unwanted consequences, the Directive obliges the executing authority who

has decided to avail itself of the possibility of having recourse to a different kind of investigative

measure to inform the issuing authority. The issuing authority, after it has been informed, may

601 Rafaraci, 2014, 41. 602 Allegrezza, 2014, 64. 603 Example given by Bachmaier Winter, in Bachmaier Winter, 2014, 76.

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undertake measures to safeguard the interests of the proceedings which are under way in the

issuing State, either by withdrawing an EIO or supplementing it.604

1. 6. 2. 5. Exclusion of the possibility to have recourse to a different kind of investigative

measure

In relation to the existence of the investigative measure under the law of the executing State and

its availability in a similar domestic case, the executing authority may not have recourse to an

investigative measure other than that provided in the EIO, when the investigative measure

indicated is one of the measures listed in Article 10 (2) of the Directive. If the investigative

measure indicated in the EIO is one of the measures listed in Article 10 (2), such a measure

always has to be executed, although it is none existent or not available under the law of the

executing State. In that case, in a situation where there is a difference between the law of the

issuing and the executing State, the law of the issuing State prevails.

Measures which exclude the possibility for the executing authority to have recourse to a different

kind of investigative measure are the following: obtaining of information or evidence which is

already in the possession of the executing authority, obtaining of information contained in

databases which are directly accessible by the executing authority, hearing of witnesses, experts,

victims, suspected or accused persons or third parties in the territory of the executing State,

identification of persons holding a subscription or a specified phone number or IP address, and

any non-coercive investigative measure as defined under the law of the executing State. These

investigative measures are singled out because of their lower levels of intrusiveness into the

rights and freedoms of an individual.605 If the investigative measure indicated in the EIO does not

represent a serious intervention of the executing State into the rights and freedoms of an

individual, the reasons which justify the adaption of the measure to the demands of the legal

order of the executing State fall flat. In the case of non-intrusive measures, neither constitutional

rights and freedoms of an individual, nor the coherence of the legal order of the executing State

are endangered.

604 Article 10 (4) of the Directive. 605 Rafaraci, 2014, 40.

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This provision means that the executing State will be obliged to execute the investigative

measure indicated in the EIO, although such a measure might not exist under its law or might not

be available in a similar domestic case. However, the executing authority still has the possibility

to make use of one of the grounds for refusal of recognition or execution of an EIO, or to choose

an investigative measure which is less intrusive than the one indicated in the EIO.

1. 6. 2. 6. De facto refusal to recognize or execute an EIO

In order for the executing authority to have recourse to an investigative measure other that the

one provided for in the EIO one precondition needs to be fulfilled: the substitute measure needs

to be equally effective as the measure indicated in the EIO, which means that the undertaking of

the substitute measure enables the same result to be achieved as the undertaking of the original

measure indicated in the EIO. In a situation where the investigative measure indicated in an EIO

does not exist under the law of the executing case or it would not be available in a similar

domestic case, and there is no other measure which is in existence that is available under the law

of the executing State, which would have the same result as the investigative measure ordered,

the executing authority shall notify the issuing authority that it has not been possible to provide

the assistance requested.606 Although this situation is not foreseen as grounds for refusal of

recognition or execution of an EIO, which are enumerated in Article 11 of the Directive, it

represents a de facto refusal to recognize or execute an EIO.607


The Directive determines that the investigative measure indicated in an EIO is executed in the

same way and under the same modalities as though the investigative measure concerned has been

ordered by an authority of the executing State.608 By prescribing this, the Directive clearly

606 Article 10 (5) of the Directive. 607 In the same sense Bachmaier Winter, in Bachmaier Winter, 2014, p. 76. 608 Article 9 (1) of the Directive.

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proclaims the principle of lex loci, pursuant to which the law of the State in which the

investigative measure is to be undertaken is decisive for the way in which it will be undertaken.

However, the Directive does not stop at this as it allows the issuing authority to indicate

formalities and procedures of the law of the issuing State which need to be followed during the

execution of an EIO in the executing State. The executing authority is obliged to comply with the

formalities and procedures expressly indicated by the issuing authority, unless it is otherwise

provided in the Directive and unless such formalities and procedures are contrary to the

fundamental principles of law of the executing State. Acting in accordance with formalities and

procedures of the issuing State should help ensure the admissibility of evidence gathered by the

investigative measure indicated in an EIO in the domestic proceedings of the issuing State in

relation to which an EIO was issued.609 This way, a method for the transnational gathering of

evidence is created, which represents a combination of the lex loci and lex fori principles.610

The solution which the Directive offers in relation to the law regulating the execution of an EIO

is not a novelty. Such a solution has already developed in the mutual legal assistance model,611

and was already present in the earlier mutual recognition instruments.612 However, even when the

same rule applies both in the mutual legal assistance and in the mutual recognition regime, it does

not mean that the rule will have the same effects in both regimes. This arises out of the fact that

these regimes are different in relation to the obligations of the requested/executing State: in the

mutual legal assistance model, the requested State has broad possibilities to refuse to cooperate

with the issuing State, while in the mutual recognition model, the executing State is obliged to

cooperate and to execute the measure indicated in the order/warrant of the issuing State.613

609 Rafaraci, 2014, p. 42. 610 Ruggeri, Stefano, Horizontal cooperation, obtaining evidence overseas and the respect for fundamental rights in

the EU. From the European Commission’s proposals to the proposal for a directive on a European Investigation

Order: Towards a single tool of evidence gathering in the EU?, in Ruggeri, Stefano (ed.), Transnational Inquiries

and the Protection of Fundamental Rights in Criminal Proceedings, Springer, 2013, p. 300, same author,

Beweisrechtshilfe und Grundrechtseingriffe am Beispiel des Richtliniensvorschlag einer europäischen

Ermittlungsanordnung, ZStW, 2/2013, p. 422-425. 611 See Article 4 (1) of the EU-MLA-2000. 612 See Article 12 of the FD EEW. 613 Ruggeri, 2013, 300.

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1. 6. 4. Officials who undertake the action

An investigative measure indicated in the EIO is executed on the territory of the executing State

and by the officials of the executing State. It is a result of the principle of national sovereignty,

pursuant to which official actions on the territory of the State can only be performed by the

officials of that State. However, the Directive also allows for the presence of the officials of the

issuing State on the territory of the executing State during the execution of an EIO. If the issuing

authority wants authorities of the issuing State to be present in the executing State during the

execution of an EIO, it must request it. However, a condition needs to be fulfilled for the issuing

authority to request this: the designated authorities of the issuing State would be able to assist in

the execution of the investigative measure indicated in the EIO in a similar domestic case. This

provision, very similar to availability of the investigative measure indicated in the EIO under the

domestic law of the issuing State, does not allow the issuing authority to request more than it

would be possible under its own law. If the issuing authority makes such a request, the executing

authority is obliged to comply with it, unless such assistance is contrary to the fundamental

principles of law of the executing State or it would harm its essential national security

interests.614

The role of the issuing State’s authority which is present at the territory of the executing State

during the execution of an investigative measure indicated in the EIO is limited to assistance:

authorities of the issuing State assist in the execution of the EIO in support to the competent

authorities of the executing State. During the execution of an EIO, they are bound by the law of

the executing State. They have no law enforcement powers, unless the execution of such powers

is in accordance with the law of the executing State and to the extent agreed between the issuing

and the executing authority.615

These kinds of provisions, which allow for the presence of the officials of one State onto the

territory of another State, are not a novelty in the law of judicial cooperation in criminal matters.

Such provisions have already existed in the mutual legal assistance instruments. The difference

between the Directive and these previous instruments is that, pursuant to the provisions of the

614 Article 9 (4) of the Directive. 615 Article 9 (4) of the Directive.

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Directive, the executing authority is obliged to accept the presence of the officials of the issuing

State, unless it is contrary to the fundamental principles of its law or it could harm its essential

national security interest. In the mutual legal assistance instruments, the presence of the officials

of the requesting State on the territory of the requested State was only a possibility on which the

requested State could decide freely.

However, the provisions of the Directive contain a significant limitation. Presence in the

executing State and assistance in the execution of an EIO is foreseen only by the authorities of

the issuing State, not for the accused or his defence lawyer. The absence of the possibility of their

presence, either the accused or his defence lawyer, represents a step backwards in comparison to

mutual legal assistance instruments, which foresaw the possibility for presence not only for the

officials of the requesting State, but also for other interested persons.616 Therefore, it can be

concluded that the provisions of the Directive in this regard undermine the position of the defence

and its role in the execution of an EIO.617

1. 6. 5. Time-limits for the execution of the EIO

The Directive EIO regulates the question of deadlines in which an EIO shall be executed on three

levels: by introducing a) the “assimilation principle”, by determining specific b) time-limits for

the recognition and execution of an EIO, and by providing a possibility of c) derogation from the

set time-limits in specific circumstances.

1. 6. 5. 1. The “assimilation principle”

Before regulating specific deadlines for the recognition and execution of an EIO, the Directive

determines that the decision on the recognition and execution of an EIO shall be taken and the

investigative measure shall be carried out with the same celerity and priority as with a similar

domestic case.618 This provision proclaims the “assimilation principle”,619 whereby there should

616 See Article 4 CoE-MLA-1959. 617 Ruggeri, 2013, 424-425. 618 Article 12 (1) of the Directive.

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be no difference in treatment between an investigative measure undertaken in the framework of a

national criminal procedure and an investigative measure carried out pursuant to an EIO. The

equality in the treatment of a purely national and a transnational investigative measure is a

precondition for the creation of an area of freedom, security and justice.620 The assimilation

principle is the governing rule on deadlines for the recognition and execution of an EIO, and

other rules which are explained below are only a supplement to this principle.621

1. 6. 5. 2. Time-limits for the recognition and execution of an EIO

The provision on specific deadlines in which a warrant/order needs to be recognized and

executed is a characteristic feature of all mutual recognition instruments.622 It represents a

novelty in comparison with the mutual legal assistance regime, where the promptness of a

response to a request for assistance was mainly dependent on the good will of the requested

State.623 The case of the EAW shows the added value of strict deadlines for the recognition and

execution of a warrant/order: in the traditional extradition system it took on average one year to

extradite the requested person, while under the EAW regime, it takes on average 14 to 17 days to

surrender persons who consented to their surrender, and on average 48 days to surrender persons

who did not consent to it.624 The traditional system of mutual legal assistance has often been

criticised as slow and ineffective,625 and the provision on strict deadlines for the recognition and

execution of an EIO was offered as a good solution to this problem.626 Making judicial

cooperation in the area of evidence run faster, undoubtedly represents a contribution to the

effectiveness of transnational prosecution, but it also works in favour of the suspect, by

shortening the time necessary to bring the criminal procedure to an end.627

619 Detailed Statement, p. 37. 620 Explanatory Memorandum, p. 13. 621Ibid. 622 See Article 17 FD EAW, Article 15 FD EEW. 623 Belfiore, Rosanna, Critical Remarks on the Proposal for a European Investigation Order and Some

Considerations on the Issue of Mutual Admissibility of Evidence, in Ruggeri, Stefano (ed.), Transnational Evidence

and Multicultural Inquiries in Europe, Springer, 2014, p. 96. 624 Report from the Commission to the European Parliament and the Council on the implementation since 2007 of the

Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between

Member States, Brussels, 11 April 2011, COM(2011) 175 final, p. 3. 625 Mavany, 2012, 136, Zimmermann et al., 2011, 57. 626 Explanatory Memorandum, p. 12-13. 627 Mavany, 2012, 136.

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The Directive starts by prescribing the deadline for taking the decision on the recognition and

execution of an EIO: the executing authority shall take the decision as soon as possible, but no

later than 30 days after the receipt of the EIO by the competent executing authority.628 If the

executing authority cannot meet the set deadline, it shall inform the issuing authority giving the

reasons for the delay and the estimated time necessary for the decision to be taken. In that case,

the 30 day deadline may be extended by a maximum of 30 days,629 which means that the decision

on the recognition and execution of an EIO must be taken within 60 days at the most.

After having determined the time-limits for taking the decision on the recognition and execution

of an EIO, the Directive sets the time-limits for the carrying out of the investigative measure

indicated in an EIO. The investigative measure needs to be undertaken without delay, and no later

than 90 days following the taking of the decision on the recognition and execution of an EIO.

This deadline does not apply if the executing authority availed itself of the possibility to postpone

recognition and execution of an EIO,630 or if the evidence mentioned in the investigative measure

indicated in an EIO is already in the possession of the executing State.631 In the latter case, the

executing authority shall transfer the evidence already in the possession of the competent

authorities of the executing State without undue delay.632 If the executing authority cannot meet

the 90 day time-limit in an individual case, it shall inform the issuing authority thereof giving the

reasons for the delay and shall consult it on the appropriate timing to carry out the investigative

measure.633

628 Article 12 (3) of the Directive. 629 Article 12 (5) of the Directive. 630 Possibility to postpone recognition and execution of an EIO is regulated in Article 15 of the Directive. Pursuant to

that provision, recognition and execution of an EIO may be postponed in two cases: i) if execution of an EIO might

prejudice an on-going criminal investigation or prosecution, or ii) if the objects, documents and data concerned are

already being used in other proceedings. 631 Article 12 (4) of the Directive. 632 Article 13 (1) of the Directive. 633 Article 13 (6) of the Directive.

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1. 6. 5. 3. Derogation from the set time-limits in specific circumstances

Time-limits for taking a decision on the recognition and execution of an EIO and for carrying out

the investigative measure indicated in it may not always meet the needs of criminal procedure,

which takes place in the issuing State and in relation to which an EIO has been issued.

Investigative measures often need to be undertaken within a specific time-frame or even on a

specific day in order to meet the needs of criminal procedure.634 An instructive example is a

situation when an investigative measure such as a search of a premises, needs to be undertaken

simultaneously on several locations.635 The Directive enables the issuing authority to demand

such “tailor-made”636 or “ad hoc”637 time limits by prescribing that the issuing authority may

indicate in an EIO that, due to procedural deadlines, the seriousness of the offence or other

particularly urgent circumstances, a shorter deadline than those provided in the Directive is

necessary, or that the investigative measure indicated in an EIO needs to be undertaken on a

specific day. Where the issuing authority has made such an indication, the executing authority

shall take as full account as possible of this requirement.638 If the executing authority is not able

to meet the shorter deadline or to undertake the investigative measure on a specific day, it shall

inform the issuing authority thereof, giving the reasons for the delay and the estimated time

necessary to undertake the measure.639

2. Position of the executing State

The executing State is a Member State executing an EIO, it is a Member State in which the

investigative measure indicated in an EIO is to be carried out.640 In relation to the position of the

executing State, the Directive regulates the following matters: a) obligation to recognize and

execute an EIO, b) authority competent to recognize and execute an EIO (executing authority), c)

grounds for non-recognition and non-execution of an EIO, and d) transfer of evidence.

634 Belfiore, Rosanna, Movement of Evidence in the EU: The Present Scenario and Possible Future Developments,

European Journal of Crime, Criminal Law and Criminal Justice, 17/2009, p. 16. 635 Explanatory Memorandum, p. 13. 636 Belfiore, 2009, 16. 637 Belfiore, 2014, 96. 638 Article 12 (2) of the Directive. 639 Article 12 (5) of the Directive. 640 Article 2 (b) of the Directive.

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2. 1. Obligation to recognize and execute the EIO

The EIO is an instrument based on the principle of mutual recognition, pursuant to the mutual

recognition paradigm, the executing Member State is under an obligation to recognize and

execute an order/warrant emanating from the issuing Member State. The same applies to the EIO,

the executing authority shall recognize an EIO, without any further formality being required, and

ensure its execution.641 The executing authority is left with little room for discretion as it can only

refuse to recognize or execute an EIO by invoking one of the grounds for non-recognition or non-

execution or one of the grounds for postponement provided for in the Directive. The words

“without any further formality being required” mean that the executing authority is not

empowered to assess the circumstances of the case which gave rise to the proceedings in relation

to which an EIO has been issued or to question the admissibility of an EIO.642

However, as it has been shown before, the Directive abandons, to a certain extent, such a pure

mutual recognition paradigm, by allowing the executing authority the power to reassess the

correctness of the issuing authority’s decision on the availability and proportionality of an EIO.

This is not the only provision which allows for a certain area of discretion to the executing

authority , the executing authority may, and in certain cases, must, have recourse to a different

kind of investigative measure than the one indicated in the EIO.

2. 2. Authority competent to recognize and execute the EIO (executing authority)

The Directive defines an executing authority as an authority which is competent to recognize an

EIO and ensure its execution.643 It does not limit the scope of authorities which may be

considered the executing authorities, thereby giving absolute freedom to the Member States to

define which authorities they shall consider executing authorities for the purpose of an EIO.

However, those authorities cannot be central authorities, since the role of central authorities is

limited to assistance to the competent authorities. The executing authority must be competent to

641 Article 9 (1) of the Directive. 642 Bachmaier Winter, 2010, 581-582, Mavany, 2012, 116. 643 Article 2 (d) of the Directive.

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recognize an EIO, but not necessarily able to execute it. Regarding the execution of an EIO, the

executing authority needs to be competent to ensure the execution of an EIO.

As it has already been shown and as it will be shown further on in the text, the executing

authority has a lot of important competences in the recognition and execution of an EIO, it can

reassess the decision of the issuing authority on availability and proportionality of an EIO, it can

have recourse to a different kind of investigative measure from the one indicated in the EIO, and

it can refuse to recognize and execute an EIO. In this context, such a broad conception of the

executing authority seems to be inappropriate.

2. 3. Grounds for non-recognition and non-execution of the EIO

In certain cases, the executing authority may refuse the execution of an EIO. In relation to the

possibility given to the executing authority to refuse recognition and execution of an EIO, the

following matters shall be analysed more closely: i) optional nature of grounds for refusal, ii)

grounds for non-recognition and non-execution of an EIO, iii) hidden grounds for refusal, and iv)

obligation to consult the issuing authority.

2. 3. 1. Optional nature of grounds for refusal

All grounds for refusal which are enumerated in Article 11 (1) of the Directive on the EIO are of

an optional character. There is no obligation for the executing authority to refuse recognition or

execution of an EIO in case one of the grounds for refusal exists. In such a situation the decision

of whether or not to refuse the recognition and execution of an EIO is left to the executing

authority. The character of grounds for refusal is not mandatory and their application is left to the

discretion of the executing authority.

Such a solution might be criticised as it gives a lot of discretion to the executing authority at the

expense of legal certainty in transnational investigations.644 It also further raises a number of

644 Schünemann, 2014, p. 31-32.

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other unresolved issues such as: what are the criteria to be used by the executing authority when

making such a decision, can a decision of the executing authority be subjected to legal revision

and the rules of which the legal order should revise?645 In regard to these critiques, it would have

been better that the grounds for refusal were formulated as mandatory, and not optional. Member

States still have a possibility to convert optional grounds from the Directive into mandatory

grounds in their national implementing provisions, although such a practice has been criticised by

the Commission.646 Such a solution would surely improve legal certainty in transnational

investigations.

2. 3. 2. Grounds for non-recognition or non-execution of an EIO

Grounds for non-recognition or non-execution of an EIO are listed in Article 11 (1) of the

Directive. The provision contains eight grounds for refusal of cooperation. With the Directive

EIO, the same process occurred which characterised the adoption of the FD EEW. In the

proposals for the adoption of the respective legal instruments, the radical limitation of grounds

for refusal was announced, but in the instrument adopted numerous grounds for refusal found

their place. In the Initiative for the adoption of the Directive EIO, only four grounds for refusal

were proposed, the number of grounds for refusal in the finally adopted text of the instrument

doubled. This shows that there is still strong opposition to, on the side of Member States, the

introduction of full features of the principle of mutual recognition when it comes to cooperation

in the area of evidence.

2. 3. 2. 1. Immunity of privilege under the law of the executing State

An EIO may be refused if there is immunity or a privilege under the law of the executing State

which makes it impossible to execute an EIO.647 There is no common definition of what

constitutes immunity or privilege in EU law, and the precise definition of these terms is therefore

645 Mavany, 2012, p. 131. 646 Mavany, 2012, p. 131. 647 Article 11 (1)(a) of the Directive.

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left to national law.648 The notion immunity refers to situations where the person enjoying it is

exempted from criminal jurisdiction of a State, because that person enjoys immunity, he/she

cannot be subjected to criminal prosecution as long as he/she enjoys immunity. Internal legal

sources normally grant immunity to certain high officials of the State, for the period in which

they hold their function. Legal sources of international law grant immunity to certain high

officials of a foreign State and international organizations.649 The notion privilege refers to

situations where criminal procedural law of a State grants to witnesses the right not to give

statements which would incriminate themselves or their close relatives, or to situations where

members of certain professions are given the right not to testify in criminal proceedings.650

Immunity and privilege which are grounds for refusal of recognition and execution of an EIO are

assessed only by the law of the executing State.

However, immunity or privilege under the law of the executing State shall not automatically lead

to the refusal of recognition or execution of an EIO. When the power to waive privilege or

immunity lies with an authority of the executing State, the executing authority shall request the

exercising of that power forthwith. If the power to waive privilege or immunity lies with an

authority of another State or international organization, it shall be for the issuing authority to

request the authority concerned to exercise that power.651

In the same provision where immunity or privilege under the law of the executing State are

regulated as grounds for refusal, a reference is also made to rules on the determination and

limitation of criminal liability relating to freedom of the press and freedom of expression in other

media. If such rules make it impossible to execute an EIO, recognition or execution of an EIO

may be refused. Criminal procedural laws of Member States normally grant to journalists and

editors the right not to testify in criminal proceedings about their sources of information, and this

provision relates to those situations.

648 Maggio, Paola, The EIO Proposal for a Directive and Mafia Trials: Striving for Balance Between Efficiency and

Procedural Guarantees, in Ruggeri, Stefano (ed.), Transnational Evidence and Multicultural Inquiries in Europe,

Springer, 2014, p. 146. 649 Krapac, 2012, r. t. 92-107. 650 Bachmaier Winter, 2014, p. 78, Mavany, 2012, p. 130-131. 651 Article 11 (5) of the Directive.

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2. 3. 2. 2. National security interests, protection of the source of information and classified

information

Recognition and execution of an EIO may be refused where, in a specific case, its execution

would harm essential national security interests, jeopardise the source of the information or

involve the use of classified information relating to specific intelligence activities.652 This is

grounds for refusal of a political character653, which reminds us of the national sovereignty and

security oriented grounds for refusal characteristic for the mutual legal assistance model.654 Since

the mutual recognition model should not be based on political considerations, these grounds for

refusal seem outmoded.655

In the mutual recognition model, there is no justification for the different treatment of criminal

proceedings taking place in the executing State and criminal proceedings taking place in any

other Member State, in relation to the interests of national security and intelligence activities.

Therefore, when an EIO is issued, the execution of which is impeded by national security

interests of the executing State, the executing authority should act in the same way as if the

protected information is needed in domestic criminal proceedings of that State, which means that

it should also use this possibility to declassify such information, where possible. Only if the

declassification of information is unavailable can the recognition and execution of an EIO be

refused.656

2. 3. 2. 3. The indicated measure would not be authorized in a similar domestic case in

relation to non-criminal proceedings

An EIO can be issued not only in relation to criminal proceedings, but also in relation to some

non-criminal proceedings in the issuing State. If an EIO has been issued in relation to non-

criminal proceedings, special grounds for refusal may apply. In such a case, the executing

authority may assess whether the measure indicated in an EIO would be authorized in a similar

652 Article 11 (1)(b) of the Directive. 653 Zimmermann et al., 2011, p. 69. 654 See Article 2 (b) CoE-MLA-1959. 655 Zimmermann et al., 2011, p. 69. 656 Bachmaier Winter, 2014, p. 79.

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domestic case. If a measure indicated in an EIO issued in relation to non-criminal proceedings

would not be authorized in a similar domestic case, the executing authority may refuse the

recognition or execution of an EIO.657

This provision relates to the availability of the investigative measure indicated in an EIO under

the domestic law of the executing State in a similar domestic case and therefore overlaps with the

provision of Article 10 (1)(b) of the Directive, which also refers to availability. However, these

provisions foresee different consequences for the same situation: Article 10 (1)(b) foresees

recourse to a different kind of investigative measure, and Article 11 (1)(c) foresees the possibility

to refuse the recognition or execution of an EIO. How should the relationship between these two

provisions be interpreted? In the situation where an EIO has been issued in non-criminal

proceedings, and the measure indicated in it would not be available in a similar domestic case in

the executing State, the executing authority may refuse the recognition and execution of an EIO,

without previously trying to find a substitute investigative measure which would achieve the

same goal. If an EIO has been issued in relation to criminal proceedings, and the investigative

measure indicated in it would not be available in a similar domestic case in the executing State,

the executing authority may not refuse to recognize or execute an EIO, without primary looking

for a substitute investigative measure which would achieve the same goal as the measure

indicated in an EIO. Only when there is no other investigative measure which would have the

same result as the measure indicated, the recognition and execution of an EIO may be refused.658

2. 3. 2. 4. The execution of an EIO would be contrary to the ne bis in idem principle

With regards to the ne bis in idem principle as grounds for the refusal of cooperation, all

considerations that have been raised with regards to the effects of the ne bis in idem principle in

the framework of the European Evidence Warrant proceedings apply (see supra C. IV. 2. 3. 2.

a)).

657 Article 11 (1)(c) of the Directive. 658 Bachmaier Winter, 2014, p. 80-81.

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Unlike with other grounds for refusal, where the basis for the decision on the refusal of

recognition and execution of an EIO is made with reference to the national law of the executing

State, in the case of ne bis in idem, the reference is made not only to the national law of the

executing State, but also to EU law.

The Preamble of the Directive prescribes that the recognition and execution of an EIO should not

be subject to refusal where an EIO is aimed at establishing whether a possible conflict with the ne

bis in idem principle exists or where the issuing authority has provided assurances that the

evidence transferred as a result of the execution of an EIO would not be used to prosecute or

impose a sanction on a person whose case has been finally disposed of in another Member State

for the same facts.659

2. 3. 2. 5. Territoriality clause

In judicial cooperation in criminal matters in the EU, the possibility to have its national criminal

laws transnationally enforced is in principle not made dependent upon the criteria on which a

Member State bases its criminal jurisdiction. This means that even when the criminal offence is

not committed on the territory of the issuing State, that State may nevertheless enforce its

criminal laws transnationally using the mechanisms of judicial cooperation in criminal matters, if

its criminal jurisdiction is based on any other of the criteria which come under consideration,

active and passive personality, protective principle or principle of universality. In order to avoid

the abusive extraterritorial exercise of jurisdiction,660 the Directive foresees the possibility to

refuse the recognition and execution of an EIO, if the criminal jurisdiction of the issuing State is

not based on the principle of territoriality. The possibility to do so is very limited, and its

application is combined with the application of the principle of double criminality.

Pursuant to Article 11 (1)(e) of the Directive, the recognition and execution of an EIO may be

refused if an EIO relates to a criminal offence which is alleged to have been committed outside of

the territory of the issuing State and wholly or partially on the territory of the executing State, and

659 Recital 17 of the Preamble of the Directive. 660 Bachmaier Winter, 2014, p. 84.

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the conduct is in connection with an EIO which is issued and is not an offence in the executing

State. Two conditions have to be fulfilled in order for the executing authority to use these

grounds for refusal: first one relating to territoriality, and the second one to double criminality. In

relation to territoriality, a negative territoriality test in relation to the issuing State and a positive

territoriality test in relation to the executing State have to be fulfilled cumulatively:661 the offence

is committed (wholly) outside of the territory of the issuing State (negative territoriality) and

wholly or partially on the territory of the executing State (positive territoriality). If the offence is

committed outside the territory of the issuing State, but not on the territory of the executing State,

yet on the territory of some other State, these grounds for refusal do not apply. The second

condition relates to the double criminality requirement: the conduct in relation to which an EIO is

issued is not a criminal offence in the executing State.

The problem that this provision tries to resolve is not a problem which falls into the domain of

judicial cooperation in criminal matters, but into the domain of criminal jurisdiction. Therefore,

the problem should be resolved by the adoption of unified EU rules on criminal jurisdiction. An

attempt to resolve this problem using the instruments of judicial cooperation in criminal matters

can lead to unsatisfying solutions, which can be detrimental for the effectiveness of the

prosecution of crimes with a transnational dimension.662

2. 3. 2. 6. Fundamental rights protection

The Directive EIO is the first mutual recognition instrument which explicitly introduces human

rights based grounds for refusal. Pursuant to Article 11 (1)(f) of the Directive, the recognition and

execution of an EIO may be refused if there are substantial grounds to believe that the execution

of the investigative measure indicated in the EIO would be incompatible with the executing

State’s obligations in accordance with Article 6 TEU and the Charter. Article 6 TEU determines

that the Union recognizes rights, freedoms and principles set out in the Charter of Fundamental

Rights of the European Union and proclaims that the Charter has the same legal value as the

Treaties. It also foresees the accession of the EU to the European Convention for the Protection

661 Schünemann, 2014, p. 34. 662 Mavany, 2012, p. 129-130.

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of Human Rights and Fundamental Freedoms and prescribes that fundamental rights, as

guaranteed by the European Convention for the Protection of Human Rights and Fundamental

Freedoms, constitute general principles of EU law.

As mentioned earlier, before the Directive EIO was adopted, there was no mutual recognition

instrument that contained human rights based grounds for refusal. All previous mutual

recognition instruments had a formal declaration with respect for human rights which normally

said: this legal instrument shall not have the effect of modifying the obligation to respect

fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on

European Union.663 This did not stop some Member States from introducing human rights based

grounds for refusal in their national legislation’s implementing of EU provisions. Such a practice,

although not welcomed by the Commission, was not severely criticised. The Commission urged

Member States to use these grounds for refusal only exceptionally.664 The same declaration

concerning the respect for human rights is also contained in Article 1 (4) of the Directive.

The absence of human rights based grounds for refusal in the previous mutual recognition

instruments needs an explanation. The principle of mutual recognition is based on mutual trust in

each other’s judicial systems. Mutual trust also presupposes trust that Member States respect

fundamental rights. In previous mutual recognition instruments, such a presumption was not

rebuttable, which explains the absence of human rights oriented grounds for refusal. However,

the Directive EIO takes another position: the presumption of respect for fundamental rights is

rebuttable. It is rebuttable if there are substantive grounds for believing that the execution of an

investigative measure indicated in an EIO would result in a breach of a fundamental right of the

person concerned and that the executing State would disregard its obligations concerning the

protection of fundamental rights recognized in the Charter.665

663 See Article 1 (3) FD EAW, Article 1 (3) FD EEW, Article 1 FD FO. 664 Report from the Commission based on Article 34 of the Council Framework Decision of 13 June 2002 on the

European arrest warrant and the surrender procedures between Member States, COM(2005) 63 final, p. 5, Report

from the Commission based on Article 34 of the Council Framework Decision of 13 June 2002 on the European

arrest warrant and the surrender procedures between Member States, COM(2006)8 final, p. 5. 665 Recital 19 of the Preamble.

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Refusal on the grounds of a breach of human rights is undoubtedly a welcome innovation of the

Directive EIO. There are a number of human rights that may be affected by a transnational

investigation order. It is not only the rights of the suspect or the accused, but also the rights of

other interested parties. In relation to the position of the suspect and his defence, it is the right to

a fair trial and defence. In relation to other interested persons, it is primary the right to privacy,

property and data protection.

2. 3. 2. 7. Double criminality

Pursuant to Article 11 (1)(g) of the Directive, the recognition and execution of an EIO may be

refused where the conduct for which an EIO has been issued does not constitute an offence under

the law of the executing State. However, this rule has two very important limitations the first of

which refers to the investigative measures which are indicated in an EIO, and the second

limitation refers to categories of offences for which the double criminality exception does not

apply.

In accordance with Article 11 (2) of the Directive, double criminality as grounds for refusal do

not apply to investigative measures referred to in Article 10 (2). These are the investigative

measures in relation to which the possibility to have recourse to a different kind of investigative

measure does not apply, because these measures always have to be available under the law of the

executing State. It is the following investigative measures: obtaining of information or evidence

that is already in the possession of the executing authority, obtaining of information from

databases directly accessible to the executing authority, a hearing of persons in the territory of the

executing State, identification of persons holding a subscription or a specified phone number or

IP address, and any non-coercive investigative measure as defined by the law of the executing

State. The Directive does not contain a definition of a non-coercive measure, but indicates that

these measures could be, for example, such measures that do not infringe the right to privacy or

the right to property, depending on national law.666 Quoted investigative measures are singled out

in a special category in relation to the application of double criminality as grounds for refusal

666 Recital 16 of the Preamble of the Directive.

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because of their lower level of intrusiveness upon the fundamental rights of an individual.667 This

kind of reasoning is in accordance with mutual legal assistance instruments, where application of

double criminality as grounds for refusal was reserved only for the search and seizure of

property.668

In relation to criminal offences for which double criminality as grounds for refusal does not

apply, the Directive EIO applies the same mechanism which is a characteristic feature of all

mutual recognition instruments.669 This means that it brings a list of offences670 which are

enumerated upon in Annex D of the Directive, in relation to which double criminality as grounds

for refusal does not apply, if these offences are punishable in the issuing State by a custodial

sentence or a detention order for a maximum period of at least three years.

2. 3. 2. 8. Use of investigative measure is restricted to certain offences

Recognition and execution of an EIO may also be refused when the use of an investigative

measure indicated in an EIO is restricted under the law of the executing State to a list or category

of offences or to offences punishable by a certain threshold, which does not include the offence

covered by an EIO.671 Also these grounds for refusal do not apply to investigative measures

referred to in Article 10 (2) of the Directive EIO.672

Criminal procedural laws of Member States usually limit the use of certain investigative

measures to a list or category of offences. Investigative measures, the use of which is restricted

only to certain offences, are characterised by the high level of intrusiveness into the fundamental

rights of an individual. Such an investigative measure is, for example, bugging of private speech

on private premises. In the German legal order, such a measure can be ordered only in relation to

offences which are enumerated in Article 100c of the German Code of Criminal Procedure. The

German code of criminal procedure refers to these offences as particularly serious criminal

667 Bachmaier Winter, 2014, p. 85, Belfiore, 2014, p. 100, Schünemann, 2014, p. 33. 668 See Article 5 (1)(a) CoE-MLA-1959. 669 See Article 2 (2) FD EAW, Article 14 FD EEW. 670 The list of offences has been criticised for lack of legal certainty, see Schünemann, 2014, p. 33. 671 Article 11 (1)(g) of the Directive. 672 Article 11 (2) of the Directive.

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offences (besonders schwere Straftaten). The Croatian Code of Criminal Procedure also limits

the use of bugging to listen to private speeches on private premises to a category of offences

which are enumerated in Article 334. In both cases, if the criminal offence in relation to which an

EIO has been issued, for the bugging of private premises, and the offence is not on the list of

offences for which German or Croatian criminal procedural law allows, the undertaking of this

special investigative technique, recognition and execution of an EIO may be refused.

2. 3. 3. Hidden grounds for refusal

Besides the grounds for refusal of recognition and execution of an EIO which are listed in Article

11 (1), the Directive EIO contains other, hidden grounds for refusal. The term “hidden grounds

for refusal” is used to describe those situations which are not listed among the grounds for refusal

in Article 11 (1) of the Directive, the consequences of which could be de facto refusal of

recognition and execution of an EIO. There are two such situations: where an EIO has been

issued by an authority, which has not been indicated by the issuing State as the authority which is

competent to issue an EIO,673 and where there is no substitute investigative measure which would

have the same result as the measure indicated in an EIO.674 In the first situation, the executing

authority does not refuse recognition or execution of an EIO, but returns the EIO to the issuing

State. In the second situation, the executing authority notifies the issuing authority that it has not

been possible to provide the assistance requested. Both of these situations are, in relation to their

consequences, equal to a refusal to recognize and execute an EIO.

2. 3. 4. Obligation to consult the issuing authority

Refusal of recognition and execution of an EIO is a last resort for the executing authority. The

first resort is the possibility to have recourse to a different kind of investigative measure. If that is

not possible, the executing authority may refuse recognition and execution of an EIO. If the

executing authority has found that the application for grounds for refusal is possible in the case in

hand, then it needs to consult the issuing authority and, whenever it is appropriate, request the

673 Article 9 (3) of the Directive. 674 Article 10 (5) of the Directive.

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issuing authority to supply any necessary information without delay.675 Only after the

consultation process has ended without success, can the executing authority refuse recognition

and execution of an EIO.

2. 4. Transfer of evidence

After the investigative measure indicated in an EIO has been undertaken and the evidence

searched for collected, the evidence needs to be transferred to the issuing State. In the issuing

State, it will be used in the criminal procedure in relation to which an EIO has been issued. With

the use of evidence in the criminal procedure of the issuing State, the circle of transnational

evidence gathering closes. In relation to the transfer of evidence to the issuing State, the Directive

EIO regulates the following issues: i) ways in which evidence may be transferred, ii) suspension

of evidence transfer, and iii) return of the transferred evidence.

2. 4. 1. Ways in which evidence may be transferred

Under the EIO regime two categories of evidence may be transferred from the issuing to the

executing State: evidence that is gathered by the executing State through the undertaking of the

investigative measure indicated in an EIO, as well as evidence that is already in the possession of

the competent authorities of the executing State. In the latter case, the evidence has not been

collected in any relation to an EIO. It is the evidence which has been gathered in the executing

State for domestic purposes, it is in possession of the competent authorities of the executing

State, and is now needed in the issuing State in the criminal procedure in relation to which an

EIO is issued. Notwithstanding these differences, the Directive determines that the executing

authority shall transfer the evidence to the issuing authority without undue delay.

675 Article 11 (4) of the Directive. The executing authority is not obliged to consult the issuing authority when the

following grounds for refusal apply: the indicated measure would not be authorized in a similar domestic case in

relation to non-criminal proceedings, double criminality, and when the use of investigative measure indicated in an

EIO is restricted to certain offences.

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The evidence may be transferred in two ways: from the executing to the issuing authority, or

directly to the competent authorities of the issuing State which are assisting in the execution of an

EIO in accordance with Article 9 (4). The latter option shall be applied only if it is so requested

in the EIO and if it is possible under the law of the executing State.676

The evidence may be only temporarily transferred. If the evidence requested is already relevant

for other proceedings, it may be temporarily transferred on the condition that it is returned to the

executing State as soon as it is no longer required in the issuing State.677

2. 4. 2. Suspension of evidence transfer

Investigative measures indicated in an EIO may be challenged by legal remedies, pursuant to

Article 14 of the Directive EIO. If an investigative measure indicated in an EIO has been

challenged by a legal remedy, the transfer of evidence gathered by that investigative measure

may be suspended. The Directive regulates two situations: the first one, where the suspension is

optional and the second one, where the suspension is mandatory. In the first situation, the

executing authority may suspend the transfer of evidence, pending a decision regarding a legal

remedy. The suspending effect of the legal remedy is therefore optional. However, the executing

authority may not suspend the transfer of evidence if sufficient reasons are indicated in an EIO

that an immediate transfer is essential for the proper conduct of its investigations or for the

preservation of rights of the individual. In the second situation, the executing authority shall

suspend the transfer of evidence. Mandatory suspension applies if the transfer of evidence that

would cause serious and irreversible damage to the person concerned.678

676 Article 13 (1) of the Directive. 677 Article 13 (4) of the Directive. 678 Article 13 (2) of the Directive.

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2. 4. 3. Return of the transferred evidence

If the executing authority wants the transferred evidence to be returned to the executing State, it

must so indicate when transferring the evidence. In that case, the evidence shall be returned to the

executing State as soon as it is no longer required in the issuing State.679


When the position of an individual in the framework of EIO proceedings is analysed, two

situations have to be differentiated: a) the position of the suspect and his defence in the

proceedings in the issuing State in relation to which an EIO has been issued, and b) the position

of an individual who is affected by the investigative measure indicated in an EIO, which is

undertaken in the territory of the executing State.

3. 1. Position of the suspect and his defence

Whenever a crime includes a transnational dimension, the position of the suspect is more

demanding that in a purely national case.680 The suspect needs to organize his defence in two or

more different states, and in at least one of them, he/she is faced with a language and a legal

system he/she is not familiar with.

With the introduction of the principle of mutual recognition, which has significantly increased the

prosecutorial powers in transnational proceedings,681 the need for measures which will enable

equal possibilities for the defence became more acute than ever before.

The principle of mutual recognition has often been criticised for benefiting only the position of

the prosecution. It has been stated that the introduction of the mutual recognition paradigm in the

area of judicial cooperation in criminal matters in the EU did not bring any benefits to the 679 Article 13 (3) of the Directive EIO. 680 Gleβ, Sabine, Transnational Cooperation in Criminal Matters and the Guarantee of a Fair Trial: Approches to a

General Principle, Utrecht Law Review, 4/2013, p. 90-91. 681 Schünemann, 2014, p. 30.

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position of the defence and that there is no real balancing between the interests of the prosecution

and the defence.682

In the following paragraphs, the position of the defence within the framework of EIO proceedings

shall be analysed. First, some i) general remarks regarding the position of the defence shall be

given. Special attention shall be devoted to specific provisions which regulate the position of the

defence in relation to an EIO, by analysing the following three issues: ii) possibility for the

defence to gather evidence abroad, iii) participation of the defence in the execution of an EIO,

and iv) legal remedies.

3. 1. 1. General remarks regarding the position of the defence

In relation to fundamental rights in general, the Directive takes the position characteristic for

mutual recognition instruments: the Directive shall not have the effect of modifying the respect

for fundamental rights.683 The same also applies in relation to the rights of the defence in criminal

proceedings: the Directive shall not have the effect of modifying the rights of defence of persons

subject to criminal proceedings.684 However, these provisions are pure declarations of respect for

fundamental rights and the rights of the defence.

In relation to fundamental rights and rights of the defence, the Directive gives the issuing and

executing authorities some obligations and possibilities. When issuing an EIO, the issuing

authority needs to assess whether the issuing of an EIO is necessary and proportionate for the

purpose of proceedings in relation to which an EIO is issued, taking into account the rights of the

suspected or accused person.685 The executing authority may refuse recognition and execution of

an EIO if its recognition and execution would be incompatible with the executing State’s

obligation to respect fundamental rights.686

682 Vernimmen-Van Tiggelen, Gisèle; Surano, Laura, Analysis of the future of mutual recognition in criminal matters

in the European Union, Final Report, Institute for European Studies, Université Libre de Bruxelles, 2008, p. 15. 683 Recital 18 and 39 of the Preamble of the Directive. 684 Article 1 (4) of the Directive. 685 Article 6 (1)(a) of the Directive. 686 Article 11 (1)(f) of the Directive.

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However, the real question is which rights the defence has in relation to an EIO. In order to

answer this question, the position of the defence in relation to the issuing, execution and

challenging of an EIO shall be analysed.

3. 1. 2. Possibility for the defence to gather evidence abroad

When it comes to criminal evidence, the prosecution and defence should be given equal

opportunity to adduce evidence.687 The same should apply to evidence which is located on the

territory of another State. The defence should be given an opportunity to initiate the procedure for

the gathering of evidence abroad. If this opportunity is reserved only for the prosecution, the

balance between the parties in criminal procedure is disturbed, and the equality of arms is lost.688

The Proposal for a Directive was silent with regards to the possibility for the defence to request

the issuing of an EIO. However, a provision which enables the defence to request the issuing of

an EIO was inserted into the Proposal during the negotiating process689 and adopted in its final

text. Pursuant to Article 1 (3) Directive EIO the issuing of an EIO may be requested by a

suspected or accused person, or by a lawyer on his behalf, within the framework of applicable

defence rights in conformity with national criminal procedure.

This provision does not provide for a binding European rule which would enable the defence to

have the right to gather the evidence abroad, which would be welcome. Instead, the provision

only refers to the national law of the Member States by providing that the opportunity for the

defence to gather the evidence abroad is only granted in the framework of applicable defence

rights in conformity with national criminal procedure. This means that the defence will be given

the opportunity to gather the evidence abroad only to the extent to which they are allowed to

initiate the gathering of evidence in purely domestic criminal procedure.

687 Heard, Catherine; Mansell, Daniel, Fair Trials International's Response to a European Member States'

Legislative Initiative for a Directive on a European Investigation Order, p. 3. 688 Mangiaracina, Annalisa, A New and Controversial Scenario in the Gathering of Evidence at the European Level:

The Proposal for a Directive on the European Investigation Order, Utrecht Law Review, 1/2014, p. 123. See also

Currie, Robert J., Human rights and international mutual legal assistance: Resolving the tension, p. 16, available at

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2114339 (12 August 2014). 689 Mangiaracina, 2014, p. 124.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2114339

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3. 1. 3. Participation of the defence in the execution of an EIO

The second issue through which the position of the defence in transnational criminal

investigations in the EU shall be analysed is the possibility for the defence to participate in the

execution of an EIO. The participation of the defence in the execution of an EIO enables the

defence to monitor the way in which the investigative measure indicated in an EIO is undertaken.

Only when the defence has the possibility to participate in the execution of an EIO, can it

successfully challenge the investigative measure and its results with the use of legal remedies.

Therefore, participation of the defence is necessary to enable the defence to use its legal

challenge against the investigative measure indicated in an EIO effectively.690 However, the

participation of the defence in the execution of an EIO is important not only for the

aforementioned reason, but at least with some investigative measures, the defence needs to be

given an opportunity to participate in the execution of an EIO in order to be able to exercise its

defence rights during the execution of an investigative measure in for example, the interrogation

of a person. Namely, if the evidence so gathered is to be admissible in the criminal procedure of

the issuing State, the defence needs to be given the opportunity to actively participate in the

execution of the investigative measure in the executing State.691 For example, if a witness is

interrogated in the execution of an EIO, the statement so obtained will be admissible in the

criminal procedure of the issuing State only if the defence had the opportunity to cross-examine

the witness.

The Directive EIO does not seem to take account of any of these issues. In Article 9 (4) the

Directive EIO provides only the possibility for the authorities of the issuing State to assist in the

execution of an EIO in the executing State. However, the possibility for the defence to take part

in the execution of an EIO may be included in the provision on compliance by the executing

authority with the formalities and procedures indicated by the issuing authority. The issuing

authority may request the presence of the defence in the execution of an EIO as a formality or a

procedure under the law of the issuing State. However, in the latter case, the presence of the

defence in the execution of an EIO is not a right guaranteed at the EU level, but a possibility

690 Belfiore, 2014, p. 102. 691 Belfiore, 2014, p. 102.

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which is left to the discretion of the issuing authority and dependent on the agreement of the

executing authority.692


The provision on legal remedies is provided in Article 14 of the Directive EIO. This provision

regulates the following matters: a) decisions that can be challenged by a legal remedy, b)

information about the possibilities for seeking a legal remedy, and c) consequences of a legal

remedy.

3. 1. 4. 1. Decisions that can be challenged by a legal remedy

In relation to the decisions that can be challenged by a legal remedy, a couple of questions arise:

Can the issuing of an EIO be challenged by a legal remedy? Can the decision of the executing

State to recognize and execute an EIO also be challenged? What are the possibilities to challenge

the decision on the investigative measure indicated in an EIO, and the investigative measure to be

executed in the executing State?

The Directive provides for the possibility to challenge the issuing, the recognition, and the

execution of an EIO.693 In relation to the issuing of an EIO, the Directive determines that the

substantive reasons for issuing an EIO may be challenged only in an action brought in the issuing

State. This provision is a characteristic feature of all mutual recognition instruments,694

representing its procedural core.695 In the EIO framework, the issuing authority is the only one

who assesses the necessity and proportionality of an EIO and having this in mind, this limitation

seems logical. However, it does significantly weaken the position of an individual situated in the

executing State who is an object of an investigative measure indicated in an EIO. Since the

substantive reasons for issuing an EIO cannot be challenged in the executing State, he/she is

692 Belfiore, 2014, p. 102. 693 Article 14 (5) of the Directive. 694 See Article 18 (2) FD EEW, Article 11 (2) FD FO. 695 Schünemann, 2014, p. 33.

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forced to take action before the courts of a remote country, thereby encountering a number of

practical (language, costs) and legal (foreign legal order) disadvantages.696 The recognition and

execution of an EIO can also be challenged by a legal remedy. Since the recognition and

execution of an EIO is taking place in the executing State, it is to be expected that the legal

challenges are going to take place there, although the Directive does not contain any rules on this

matter. A legal challenge against the recognition and execution of an EIO can, for example,

indicate the fact that the recognition and execution of an EIO should (have) be(en) refused.

Besides an EIO, the investigative measure indicated in an EIO can be subjected to a legal

challenge. The differentiation between a legal challenge against an EIO and against an

investigative measure indicated in an EIO is not an artificial one. The Directive differentiates

between the necessity and proportionality of an EIO and between availability, necessity and

proportionality of an investigative measure indicated in an EIO. In challenging the investigative

measure indicated in an EIO, it might be claimed that the indicated investigative measure is not

available under the law of the issuing or the executing State, or that its use is not proportionate

under the circumstances of the case. In relation to legal remedies against the investigative

measure indicated in an EIO, the Directive EIO obliges Member States to ensure applicability of

legal remedies equivalent to those available in a similar domestic case.697

3. 1. 4. 2. Information about the possibilities for seeking a legal remedy

In order to use a legal remedy, the suspect or his defence lawyer need to be informed about the

possibility to seek a legal remedy. In relation to the investigative measures which are indicated in

an EIO and the possibility to inform the suspect and his defence lawyer about the opportunity to

use a legal remedy, the following three situations need to be differentiated: information prior to

the execution of the investigative measure with the possibility to challenge the decision before

the measure is executed, only information during or after the measure is executed and the

possibility to challenge the measure only thereafter, and information about the investigative

696 Schünemann, 2014, p. 33. 697 Article 14 (1) of the Directive.

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measure only at a later stage, after the investigation has already been completed.698 From the

standpoint of the defence, the first option is the best one, the possibility to challenge the

investigative measure before it is executed diminishes the possibility of a fundamental rights

violation. However, a prior challenge is not always possible and in certain situations it is

excluded because of the very nature of the investigative measure (covert measures). While in

certain situations providing information about the ongoing investigation would endanger the

success of investigation (confidentiality of the investigation).

In relation to this question, the Directive EIO contains the following rule: the issuing and the

investigating authority are obliged to take appropriate measures to ensure that information is

provided about the possibilities under national law to seek a legal remedy. This, already vaguely

defined obligation is further limited with two preconditions. Such an obligation is triggered only

where it would not undermine the need to ensure the confidentiality of an investigation, and only

after legal remedies become applicable under national law and in due time to ensure that they can

be exercised effectively.699

3. 1. 4. 3. Consequences of a legal remedy

In relation to the consequences of a legal remedy, three situations can be differentiated: the effect

of the legal remedy on the execution of the investigative measure indicated in an EIO, the effect

of the legal remedy on the transfer of evidence obtained in the execution of an EIO, and the effect

of the legal remedy on the criminal procedure that is taking place in the issuing State and in

relation to which an EIO has been issued.

In relation to the effects of the legal remedy on the execution of the investigative measure

indicated in an EIO, the question that has to be answered is: does the legal remedy suspend the

execution of the investigative measure or does it not affect it? The Directive EIO does not contain

a mandatory rule on the issue, but rather refers to the national law of the Member States by

698 Arena, Alessandro, The Rules on Legal Remedies: Legal Lacunas and Risks for Individual Rights, in Ruggeri,

Stefano (ed.), Transnational Evidence and Multicultural Inquiries in Europe, Springer, 2014, p. 115-116. 699 Article 14 (3) Directive.

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stating that a legal challenge shall not suspend the execution of the investigative measure, unless

it is provided in similar domestic cases.700

A legal remedy may have the effect of suspending the transfer of evidence, unless sufficient

reasons are indicated in an EIO that an immediate transfer is essential for the proper conduct of

the investigation or for the preservation of individual rights. However, when the transfer of

evidence may cause serious and irreversible damage to the person concerned, it can be

suspended pending a decision regarding a legal remedy.701

Special problems with the effects of a legal remedy arise in a situation where the successful

outcome of a legal challenge against the recognition and execution of an EIO has become known

only after the evidence obtained in the execution of an EIO has already been transferred to the

issuing State. In this situation, the evidence transferred is used in the criminal procedure of the

issuing State. Does a successful legal challenge against the recognition and execution of an EIO

effect the admissibility of transferred evidence in the criminal procedure of the issuing State, and

if it does, in what way? Successful legal challenges against recognition and execution of an EIO

may mean that an EIO should not have been recognized or executed, because, for example, the

grounds for refusal of recognition and execution existed. The Directive EIO does not directly

prescribe the effects of a successful legal challenge against the recognition and execution of an

EIO in the criminal procedure of the issuing State, but rather refers to the national law of the

issuing State, by stating that the issuing State shall take into account a successful challenge

against the recognition and execution of an EIO in accordance with its national law. However, the

Directive does oblige the issuing State to ensure that the rights of the defence and the fairness of

the proceedings are respected when assessing evidence obtained through an EIO.702

700 Article 14 (6) Directive. 701 Article 13 (2) Directive EIO. 702 Article 14 (7) Directive EIO.

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Analysis undertaken on the position of the defence in the framework of EIO proceedings has

shown that the Directive does not directly guarantee the defence any specific rights in relation to

the transnational proceedings. All the rights that the defence has in relation to an EIO are

dependent on the scope of rights that are grated to the defence in the framework of national

criminal proceedings. If a balanced system of transnational investigations is to be built, a greater

possibility for the prosecution to enforce national criminal laws transnationally, which was

brought about with the principle of mutual recognition, needs to be counterbalanced by the

specific rights of the defence in transnational criminal proceedings. Thus, specific rights for the

defence need to be woven into the fabric of the Directive EIO.

3. 2. Position of an individual affected by the investigative measure

Rules on the gathering of evidence represent a balanced answer of the legal order of every State

to the question posed by the tension between two colliding tendencies: on the one hand, there is a

tendency to effectively prosecute crime, and, on the other, there is a tendency to safeguard the

rights and freedoms of an individual. Rules on the gathering of evidence are very different from

State to State and they reflect the peculiarities of historical and cultural surroundings in the

framework of which national criminal procedural rules were developed. Evidence gathering

actions often require the interference of the State into the rights and freedoms of an individual,

while criminal procedural law of the State determines the degree to which this is allowed.

In the area of judicial cooperation in criminal matters which is based on the principle of mutual

recognition the issuing State decides on the investigative measure pursuant to its own rules which

strike the balance between efficiency of prosecution and fundamental rights protection. However,

a decision which has been made by the authority of the issuing State is transnationally

enforceable,703 because in principle it must be enforced on the territory of the executing State.

As a consequence, in the area of fundamental rights, this means that the executing State will be

703 Ruggeri, Stefano, Beweisrechtshilfe und Grundrechtseingriffe am Beispiel des Richtliniensvorschlag einer

europäischen Ermittlungsanordnung, ZStW, 2/2013, p. 410.

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obliged to interfere with the fundamental rights of individuals situated on its territory, although

its own law would not allow for such interference. This situation is problematic not only from the

point of view of an individual who is affected by the investigative measure undertaken on the

territory of the executing State, but also from the point of view of the executing State. Namely, it

creates a situation whereby different fundamental rights standards apply for investigative

measures undertaken in a national framework, on the one hand, and for those undertaken in a

transnational framework, on the other. This affects the unity and coherence of the legal order of

the executing State.

The following paragraphs will analyse the degrees to which the provisions of the Directive take

into account the position of an individual who is affected by the investigative measure indicated

in an EIO. It will also analyse the degrees to which a person’s fundamental rights are guaranteed

under the legal order of the executing State and are safeguarded in the process of recognition and

execution of an EIO.

3. 2. 1. Recourse to a different type of investigative measure as a fundamental rights

guarantee

Pursuant to the Directive EIO, the issuing authority decides about the investigative measure that

is to be undertaken on the territory of the executing State in the execution of an EIO. The issuing

authority bases this decision on the criteria prescribed in its own law. Although the executing

authority may not allow for the same investigative measure to be undertaken at all, or it may not

allow for the same investigative measure to be undertaken under the same factual circumstances,

the executing authority is obliged to execute the investigative measure indicated in an EIO. This

is a typical feature of mutual recognition instruments, where, in the collision between the laws of

the issuing and the executing State, the law of the issuing State prevails.

As previously explained, this may cause problems in the sphere of fundamental rights protection.

If fundamental rights protection standards in the area of evidence gathering in the issuing State

are lower than the standards of the executing State, the executing State will have to interfere into

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the rights and freedoms of an individual in a way which is contrary to the fundamental rights

guarantees of its legal order.

However, the Directive EIO offers some solutions in order to avoid this. The first possibility

which the issuing State has at its disposal is to have recourse to a different type of investigative

measure. The executing authority may substitute the investigative measure indicated in an EIO by

an investigative measure which is in existence, available and proportionate under its law.704 Such

a solution, welcomed from the position of fundamental rights protection and the safeguarding of

coherence of the legal order of the executing State, represents a negation of mutual recognition

logic.705 By using this mechanism the executing authority may adapt the investigative measure

indicated in an EIO and ordered pursuant to the law of the issuing State, to its own fundamental

rights standards. If such an adaptation is not possible, the investigative measure indicated in an

EIO will not be executed.

From a fundamental rights point of view, recourse to a different kind of investigative measure, in

order to be recognized as an effective guarantee, should be mandatory for the executing authority

whenever there is a fundamental rights issue. However, the Directive EIO did not go so far but

had recourse to a different kind of investigative measure, which is mandatory for the executing

State only when the measure indicated in an EIO is not in existence under the law of the

executing State or would not be available in a similar domestic case. In the case of non-

proportionality, when the executing authority may opt for a less intrusive measure than the one

indicated in an EIO – which seems to be most important from the point of view of fundamental

rights – there is no such obligation for the executing authority. In the latter case, recourse to a

different kind of investigative measure is only optional.

704 See Article 10 of the Directive. 705 Ruggeri refers to it as a deviation (Abweichung) from the classical model of mutual recognition, Ruggeri, Stefano,

Beweisrechtshilfe und Grundrechtseingriffe am Beispiel des Richtliniensvorschlag einer europäischen

Ermittlungsanordnung, ZStW, 2/2013, p. 412.

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3. 2. 2. Fundamental rights oriented grounds for refusal

Besides the possibility to have recourse to a different kind of investigative measure, the executing

authority has another possibility to safeguard the executing State’s fundamental rights and

considerations. To this end, the executing authority may use one of the fundamental rights

oriented grounds for refusal, recognition or execution of an EIO. The Directive EIO contains a

number of grounds for refusal that can be used in order to achieve that goal. Besides explicit

refusals on the grounds of interference of fundamental rights, fundamental rights considerations

can also trigger the application of other grounds for refusal, for example, immunity or privilege

under the law of the executing State or the double criminality requirement.


In the two previously analysed mechanisms, the safeguarding of the rights of an individual

affected by an investigative measure indicated in an EIO is left in the hands of the executing

authority. However, the individual concerned also has the possibility to safeguard his rights in the

EIO scheme, by using legal remedies against an EIO or against an investigative measure

indicated in an EIO. In relation to the individual concerned and his possibilities to use legal

remedies, the same limitations which have been previously explained in relation to the position of

the defence apply. [see supra C. IV. 3. 5. 4. a) iv)].


With regards to the position of the individual affected by the investigative measure indicated in

the EIO, the Directive contains three mechanisms which enable the adaptation of the

investigative measure ordered pursuant to the law of the issuing State to the fundamental rights

standards which arise out of the legal order of the executing State. Two of the mechanisms are of

an indirect nature, because they put the protection of the fundamental rights of the individual in

the hands of the executing authority, and one of them is direct in nature which enables the

individual who is the object of the investigative measure to become directly involved in EIO

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proceedings. The first mechanism is recourse to a different kind of investigative measure. This

enables the executing authority to successfully adapt the investigation order to its fundamental

rights standards, without activating the need to make use of one of the grounds for refusal of

cooperation. Although welcomed from the standpoint of fundamental rights, by way of

representing a deviation from the mutual recognition principle, it produces negative effects on the

effectiveness of the transnational enforcement of EU criminal law. The second mechanism is

fundamental rights oriented grounds for refusal for cooperation. In a case where the EIO cannot

be adapted to the fundamental rights demands of the legal order of the executing State, the

executing State has the possibility, as a last resort, to make use of one of the grounds for refusal

of cooperation. The EIO is innovative in that it represents the first mutual recognition instrument

which introduced a specific fundamental rights oriented grounds for refusal of cooperation. The

third mechanism is the possibility for the individual affected to get directly involved in the EIO

proceedings by making use of legal remedies. The individual has the possibility to use a legal

remedy which is subjected to the same limitations which apply in the case of the accused and

their defence in the criminal procedure of the issuing State.


The Initiative for a Directive EIO was brought forward with two main objectives: to bring an end

to the fragmentariness and complexity of the legal regime and to further apply the principle of

mutual recognition in the area of cross-border evidence gathering. With regards to its first

objective, the Initiative can be accepted as a success: cross-border evidence gathering in EU

criminal law is no longer regulated by a number of legal instruments, which are founded on

different principles and procedures for judicial cooperation in criminal matters. Legal provisions

for cross-border evidence gathering are now concentrated in a single legal instrument (except in

relation to forms of cooperation which are explicitly excluded from its scope of application: joint

investigation teams and cross-border surveillance), which significantly raises the awareness and

legal security of the area and facilities the work of practitioners. In relation to its second

objective, the success of the Directive is considerably limited and along with this the Directive

creates a two-fold legal regime. In relation to certain investigative measures, such as the

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temporary transfer of persons or the gathering of evidence in real time, it continues to apply the

rules which are characteristic of the mutual legal assistance model of cooperation. In relation to

all other investigative measures, it introduces a mitigated version of mutual recognition, by

abandoning a number of principles which form the core of the mutual recognition model of

cooperation, primarily by giving the executing authority a number of possibilities to adapt the

decision of the issuing State to the demands which arise out of its (criminal) legal order. The

approach to mutual recognition which is brought to life in the provisions of the Directive leads us

to a conclusion that the opponents of mutual recognition who have claimed that its introduction in

the area of evidence, in the absence of any major efforts to harmonize the national criminal

(procedural) orders of Member States, were right. However, this does not mean that the

restoration of the mutual legal assistance model is an appropriate solution for the future of EU

criminal law. Significant effort needs to be invested in the harmonization of national criminal

justice systems of Member States. Only in the surrounding of harmonized criminal justice

systems can the mutual recognition model of cooperation develop its full potential.

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Chapter IV. CASE STUDY - HOME SEARCH IN THE

TRANSNATIONAL CONTEXT

I. HOME SEARCH IN CROATIAN AND GERMAN CRIMINAL LAW

SYSTEM

1. Search of home in Croatian criminal law system

1. 1. Constitution of the Republic of Croatia

To search a home in the Croatian legal system, provisions of the Constitution of the Republic of

Croatia (Ustav Republike Hrvatske)706 are of primary importance. Namely, in the Croatian legal

system, basic rules on searching the home are contained in the highest legal source of the

Republic of Croatia, its Constitution. The searching of a home is regulated in Article 34 of the

Constitution, pursuant to the Constitution everybody is entitled to the inviolability of the home –

the home is inviolable.707 The Constitution allows the search of a home, but, pursuant to its

provisions, a search of a home can only be undertaken upon a written warrant issued by a

court.708 If a search of a home is undertaken, its tenant or his/her authorized representative is

entitled to be present during the search of his/her home together with two mandatory witnesses.709

The exception is a home search which is based on a search warrant issued by a court, the

Constitution also allows the search of a home without a warrant, but this search is subjected to

specific conditions. The Police authorities may enter a home without a warrant or consent from

the tenant and conduct a search in the absence of witnesses insofar as this is essential to enforce

an arrest warrant, apprehend an offender, or to prevent any grave threat to life or substantial

706 Official Gazette (Narodne novine) 56/90, 135/97, 8/98, 113/00, 124/00, 28/01, 41/01, 55/01, 76/10, 85/10, 5/14.

All legal sources of the Republic of Croatia used in this part of the work can be found at the page of the Official

Gazette, www.nn.hr. Translation of the Croatian Constitution to English can be found at the web page of the

Parliament of the Republic of Croatia (Sabor Republike Hrvatske),

http://www.sabor.hr/Default.aspx?art=2405 707 Article 34(1) of the Constitution. 708 Article 34(2) of the Constitution. 709 Article 34(3) of the Constitution.

http://www.nn.hr/

http://www.sabor.hr/Default.aspx?art=2405

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damage to property.710 If police authorities are conducting a search of a home without a warrant

and if such a search is conducted in order to locate or secure evidence, which is reasonably

suspected to be in the home of a perpetrator of a criminal offence, it may only be conducted in

the presence of witnesses.711

1. 2. Criminal Procedure Act

Provisions on a search of a home for the needs of a criminal procedure are situated in the

Criminal Procedure Act (Zakon o kaznenom postupku, further on CPA)712. Firstly the

requirements for the undertaking of this measure shall be presented, followed by the presentation

of its form.

1. 2. 1. Requirements for undertaking the search of a home

Requirements for the undertaking of a home search shall be divided into material and formal

requirements. Material requirements refer to a certain level of suspicion that the criminal offence

has been committed and that the persons or objects of importance for a criminal procedure shall

be found in a certain premise which represents a home, and the formal requirements refer to the

existence of a judicial warrant for a home search or the possibility to undertake the measure

without the existence of such a warrant.

1. 2. 1. 1. Material requirements

The CPA prescribes that a search of a home shall be undertaken when it is probable that the

perpetrator of a criminal offence, objects or traces important for criminal procedure may be found

710 Article 34(4) of the Constitution. 711 Article 34(5) of the Constitution. 712 Official Gazette 152/08, 76/09, 80/11, 121/11, 91/12 Decision of the Constitutional Court of the Republic of

Croatia, 143/12, 56/13, 145/13. Translation of the Criminal Procedure Act to English can be found at the web page of

the Judicial Academy (Pravosudna akademija),

http://pak.hr/cke/propisi,%20zakoni/en/CriminalProcedureCode(2008)/EN.pdf

http://pak.hr/cke/propisi,%20zakoni/en/CriminalProcedureCode(2008)/EN.pdf

215

in that home.713 The notion “probable” refers to a certain degree of suspicion that a criminal

offence has been committed and that the perpetrator of the offence, objects and traces important

for criminal procedure shall be found in the home of the perpetrator or any other person.714 The

term probable represents a legal standard. As a legal standard, it needs to be interpreted by the

competent judicial authorities. In Croatian legal theory, it is accepted that probability needs to

fulfil the following criteria in order to meet the requirements for the undertaking of intrusive

investigative measures, including a home search: i) it needs to exist before the measure is

undertaken, which means that a home search cannot be undertaken in order to create the

probability that a criminal offence has been committed and that certain persons or objects

important for a criminal procedure shall be found there, but only as an answer of the state to the

already existing probability, ii) it needs to be concrete, which means that it needs to indicate the

existence of concrete facts, and cannot arise out of speculation, iii) it needs to be specific, which

means that it needs to relate to the existence of a specific criminal offence and specific persons or

objects to be found in somebody’s home, and iv) it needs to be articulated, which means that it

needs to be able to be presented in clear language and in a logical manner understandable to all

participants to the procedure.715

1. 2. 1. 2. Formal requirements

In the Croatian legal system, a home search can be undertaken either on the basis of a court

warrant or, in exceptional circumstances, without a court warrant, while another scenario which

can negate a court warrant is with the consent of the tenant.716

1. 2. 1. 2. 1. Home search on the basis of a court warrant

Provisions of the Constitution determine that a home can be searched only on the basis of a court

warrant. This Constitutional provision is confirmed in the provisions of the CPA which determine

713 Article 240(2) CPA. 714 Krapac, Davor, Kazneno procesno pravo, Prva knjiga: Institucije, Narodne novine, Zagreb, 2012, p. 313. 715Ibid., p. 314-315. 716Ibid., p. 315.

216

that a home search is undertaken on the basis of a written and reasoned warrant issued by the

judge in charge of the investigation.717 The same provision also prescribes the content of the

written warrant, it needs to contain a designation of the subject of search, purpose of the search

and an authority that shall undertake the search. The judge in charge of the investigation issues

the warrant at the request of the public prosecutor, if the material requirements for issuing the

warrant are fulfilled. The existence of the court warrant is a precondition for the legality of the

search to be undertaken, if a search is conducted without a written search warrant, unless it is a

situation where the provisions of the CPA allow for a home search to be undertaken without a

warrant, the protocol of a search and evidence obtained in the search may not be used as evidence

in criminal proceedings.718

1. 2. 1. 2. 2. Home search without a court warrant

In Exceptional circumstances the police may enter a home and search it without the consent of

the tenant or a search warrant issued by a court in two situations. The authority of the police to

conduct a home search without a court warrant arises directly out of the provisions of the

Constitution. This authority is further regulated in the CPA. The first situation is where the police

are authorized by a special law to enter a person’s home, and it is probable that the perpetrator of

a criminal offence, objects or traces important for criminal procedure may be found in that

home.719 The authority of the police to enter a person’s home is regulated in the Police Activities

and Powers Act (Zakon o policijskim poslovima i ovlastima, further on: PAPA)720. This Act

authorizes a police officer to enter a person’s home without the consent of the tenant and without

a warrant if i) it is strictly necessary because somebody is calling for help, or ii) it is strictly

necessary in order to remove a serious danger to the life and health of people or to protect

717 Article 242(1) CPA. Exceptionally, in case of certain criminal offences determined by the CPA, if a search must

be carried out immediately, since its postponing would endanger the achievement of search objectives, a public

prosecutor may issue a warrant for a search of a person or a means of transportation. However, public prosecutor

may never issue a warrant for home search. A provision which would allow public prosecutor to order a home search

would be in contradiction with the Constitution, since the Constitution allows the home search to be ordered only by

a court. See Article 245 CPA. 718 Article 250(1) CPA. 719 Article 246(2)(1) CPA. 720 Official Gazette 76/09, 92/14.

217

property, or iii) in order to execute a warrant for compulsory appearance.721 The second situation

when the police are authorized to search a home without a search warrant is where the search is

strictly necessary in order to execute an arrest warrant or to arrest a perpetrator of a criminal

offence punishable by imprisonment for not less than three years.722 If a home search was

undertaken without a warrant in situations which are not allowed by previously presented

provisions, the protocol of a search and evidence obtained in the search may not be used as

evidence in criminal proceedings.723

1. 2. 2. Form of undertaking a home search

The Croatian CPA contains a number of very detailed provisions which regulate the form of a

home search. Some of these provisions are of great significance for the validity of a home search

and the possibility to use its results as evidence in a criminal procedure. Specific provisions on

the form of a home search regulate the questions of authorities which are competent to execute

the search warrant,724 the obligation to give a search warrant and the letter of rights to the person

whose premises are to be searched before the commencement of the search,725 the time when a

home search may be undertaken,726 the obligatory presence of certain persons during the search,

and the obligations in relation to the protocol of search.727 The most important among the

provisions on the form of home search are the ones which relate the obligatory presence of

certain persons during the search. The CPA prescribes that at least two citizens of at least 18

721 Article 74(1) PAPA. 722 Article 246(2)(2) CPA. 723 Article 250(2) CPA. 724 Search is carried out by the public prosecutor, the investigator or the police, Article 242(4) CPA. 725 A search warrant must be given before the commencement of the search to the person whose premises are to be

searched. If a search is undertaken in the home of the accused, a search warrant must be accompanied with the letter

of rights. Exceptionally, search may also be conducted without previously giving the warrant to the person whose

premises are to be searched, for example, if armed resistance is expected. See Article 243-244 CPA. 726 The search shall be carried out during the day, from 7 a.m. until 9 p.m. Exceptionally, search may be carried out

during the night, if, for example, there is a probability that the objects or traces looked for shall be destroyed or

hidden. See Article 247 CPA. 727 A protocol of each search must be made. It must be signed by the person whose premises have been searched and

by the persons whose presence during the search is mandatory. A copy of the protocol must be given to the person

whose premises have been searched. Objects and documents which were seized during the search must be

specifically described in the protocol. See Article 248 CPA.

218

years of age must be present as witnesses during the search of a home or other premises.728 If a

home search was conducted without the presence of persons who had to be present during the

search, the protocol of search, as well as all evidence obtained in the search may not be used as

evidence in criminal proceedings.729

2. Search of a home in the German criminal law system

2. 1. Basic Law of the Federal Republic of Germany

In the German criminal law system, just like in the Croatian, a house search is the subject of

Constitutional regulation. Pursuant to the Basic Law of the Federal Republic of Germany,

(Grundgesetz für die Bundesrepublik Deutschland, further on: GG),730 the home is inviolable.731

However, GG also allows for searches to be undertaken in a person’s home, but searches may

only be authorized by a judge or, when there is a danger of delay, by other authorities designated

by the law, which may be carried out only in the manner therein prescribed.732 Therefore,

provisions of the GG only determine the authority competent to order the search: a judge, or,

when there is a danger in delay, another authority designated by the law; and prescribe that the

search must be undertaken in the manner (form) prescribed by the law. Detailed provisions on a

home search for the needs of a criminal procedure are situated in the German Code of Criminal

Procedure (Strafprozessordnung, further on: StPO).733

728 Article 254(2) CPA. These persons must be present during home search. Their presence is a guarantee that the

search is being undertaken properly – before the commencement of the search, they are warned to observe how the

search is carried out and that they are entitled to place their objections prior to signing the protocol of search, if they

are of the opinion that the search has not been conducted in accordance with the provisions of the CPA. Besides

witnesses, who must be present during the search, there are other persons who may be present during the search: the

tenant or the person authorized by him/her and a defence counsel. See Articles 253 and 254 CPA. 729 Article 250(7) CPA. 730 The Basic Law was adopted on 23 May 1949. The last change took place on 11 July 2012. For this part of the

work, the text of the Basic law published on the web page of the German Parliament (Bundestag), at the following

address: https://www.bundestag.de/grundgesetz was used. Also the translation of the Basic law in English published

by the Bundestag was used. The translation can be found at the following address:

https://www.btg-bestellservice.de/pdf/80201000.pdf 731 Article 13(1) GG. 732 Article 13(2) GG. 733 For this part of the work, the text of German Code of Criminal Procedure accessible at the following web address

was used: http://www.gesetze-im-internet.de/bundesrecht/stpo/gesamt.pdf. For the text of the StPO in English, visit

the following web address:

https://www.bundestag.de/grundgesetz

https://www.btg-bestellservice.de/pdf/80201000.pdf

http://www.gesetze-im-internet.de/bundesrecht/stpo/gesamt.pdf

219

2. 2. Code of Criminal Procedure

Presentation of the provisions of the StPO which refer to a home search shall be executed

following the same pattern which is used in the presentation of the provisions of the Croatian

CPA. First, the requirements for the undertaking of a home search shall be presented (1.), which

will be divided into material (1. 1.) and the formal requirements (1. 2.). Presentation of the

requirements for a home search shall be followed by the presentation of its form (2.).

2. 2. 1. Requirements for undertaking the search of home

2. 2. 1. 2. Material requirements

Material requirements for the undertaking of a search of a home in the German criminal

procedural law system are different depending on whether the search is conducted in the home of

the accused or in the home of other persons who are not suspected of having committed a

criminal offence.

The home of the person who is suspected of committing a criminal offence may be searched

either to apprehend the suspect, or if it is expected that the search will lead to the discovery of

evidence.734 In order to undertake the search of suspect’s home, the existence of a plain

assumption (schlichte Vermutung) that the search will lead to the discovery of evidence is

enough.735 This assumption does not have to be corroborated by the existence of concrete facts,

but it has to be based on verified criminalist experience. An instinctive or vague assumption is

not enough736 and the same criteria should be applied to the notion of “suspect”, a general

suspicion against a person which is not concrete and is not enough.737

http://www.gesetze-im-internet.de/englisch_stpo/german_code_of_criminal_procedure.pdf 734 Article 102 StPO. 735 Roxin, Claus; Schünemann, Bernd, Strafverfahrensrecht, Ein Studienbuch, Verlag C. H. Beck, München, 2012, p.

285. 736Ibid., p. 285. 737Ibid., p. 285. See also Joecks, Wolfgang, Strafprozessordnung, Studienkommentar, Verlag C. H. Beck, München,

2011, p. 227.

http://www.gesetze-im-internet.de/englisch_stpo/german_code_of_criminal_procedure.pdf

220

Different, stricter criteria apply to the search of the home of a person who is not suspected of

committing a criminal offence. In this case facts have to exist which form the basis for the

conclusion that the person sought is on the premise to be searched.738 The same applies when the

search is undertaken in order to find the evidence, the evidence looked for must be made

concrete.739

2. 2. 1. 3. Formal requirements

In the German legal system, a home search can be undertaken on the basis of a court warrant.740

This arises out of the provisions of the GG, which determine that a search can be ordered only by

a judge. This provision is often called der Richervorbehalt741, which may be translated as “the

requirement of a judge”, which means that searches may be ordered only by a judge, and no other

authority. However, the GG also allows a search to be ordered by other authorities designated by

the law, but only if there is a danger in delay.742

Provisions of the GG are further elaborated on in the StPO. There, it is primarily stipulated that

searches may be ordered only by a judge. However, if there is a danger in delay, they may be

ordered by the public prosecutor’s office and the officials assisting it.743 Therefore, provisions of

the StPO specify the authorities that may issue a search warrant in a situation where there may be

a danger in delay744and these agents may be the public prosecutor’s office and the officials

738 Article 103(1) StPO. See also Joecks, Wolfgang, Strafprozessordnung, Studienkommentar, Verlag C. H. Beck,

München, 2011, p. 230. 739 Roxin, Claus; Schünemann, Bernd, Strafverfahrensrecht, Ein Studienbuch, Verlag C. H. Beck, München, 2012, p.

288, Joecks, Wolfgang, Strafprozessordnung, Studienkommentar, Verlag C. H. Beck, München, 2011, p. 230. 740 A specific search warrant is not needed in a case where the search is undertaken in order to execute a final

judgment, or when a search is undertaken on the basis of an arrest warrant or a warrant for compulsory appearance

issued against the suspect, Roxin, Claus; Schünemann, Bernd, Strafverfahrensrecht, Ein Studienbuch, Verlag C. H.

Beck, München, 2012, p. 286. 741 Roxin, Claus; Schünemann, Bernd, Strafverfahrensrecht, Ein Studienbuch, Verlag C. H. Beck, München, 2012, p.

285. 742 See Article 13(2) GG. 743 Article 105(1) StPO. 744 Following the newest jurisprudence of the Federal Constitutional Court (Bundesverfassungsgericht, further on:

BVerfG), the legal standard of „danger in delay“ needs to be interpreted very strictly. This danger must be based on

facts, which are related to the case at hands. It can not be based on everyday criminalist experience. Before the public

prosecutor's office uses its authority to issue a search warrant, it must primarily try to reach a competent judge. The

courts are obliged to secure the availability of judges by establishing „emergency services“ through the appointment

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assisting it.745 A search warrant is necessary in all situations where the person affected by the

search does not consent to it.746

The content of the search warrant is not determined by the StPO but is determined by the

jurisprudence of the highest German courts. All warrants must, to an extent that is possible and

without impeding the criminal prosecution, describe the suspicion that a criminal offence has

been committed, as well as the evidence that is hoped to be gained.747 In is not enough to describe

their suspicion solely through the legal classification of the criminal offence, as suspicion needs

to be based on the factual description of the charge. In the search warrant, the purpose and the

goal of the search must also be described; especially through the designation of the premises that

are to be searched and the evidence to be gained.748

There is no required form for a search warrant, in cases of urgency, as it may be issued in an oral

form.749 In any case, it must be documented in writing in the investigation file as their needs to

be an opportunity to safeguard later reviews of the procedure and execution of the warrant.750

The last question which needs to be answered in relation to the search warrant is what the

consequences are if a home search has been undertaken without a search warrant. Is evidence so

collected inadmissible? German jurisprudence differentiates between a couple of situations as the

undertaking of a search without a search warrant does not necessarily lead to the inadmissibility

of the evidence gathered. If the public prosecutor had any misapprehensions about the existence

of „judges on duty“. See Roxin, Claus; Schünemann, Bernd, Strafverfahrensrecht, Ein Studienbuch, Verlag C. H.

Beck, München, 2012, p. 285-286. 745 The officials assisting the public prosecutor's office are „Die Ermittlungspersonen der Staatsanwaltschaft“ –

investigative personnel of the public prosecutor's office, provided in Article 152 of the Courts Constitution Act

(Gerichtsverfassungsgesetz). 746 Joecks, Wolfgang, Strafprozessordnung, Studienkommentar, Verlag C. H. Beck, München, 2011, p. 232. 747 This is often not the case in practice, where it is common to use pre-printed forms. This practice is questionable

from the constitutional point of view, because the use of such forms does not guarantee that an independent

examination of the material conditions for the issuing of the warrant has been undertaken, which is the meaning of

the Richtervorbehalt, see Roxin, Claus; Schünemann, Bernd, Strafverfahrensrecht, Ein Studienbuch, Verlag C. H.

Beck, München, 2012, p. 286. 748 Roxin, Claus; Schünemann, Bernd, Strafverfahrensrecht, Ein Studienbuch, Verlag C. H. Beck, München, 2012, p.

286. 749 It is possible that a serach warrant is issued tacitly – when the authority undertaking the search is competent to

issue a search warrant, Joecks, Wolfgang, Strafprozessordnung, Studienkommentar, Verlag C. H. Beck, München,

2011, p. 232. 750 Roxin, Claus; Schünemann, Bernd, Strafverfahrensrecht, Ein Studienbuch, Verlag C. H. Beck, München, 2012, p.

286.

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of a search warrant, they thought that a court warrant exists although it did not, the evidence

gathered in that search shall be admissible, if a search warrant would have surely been issued in

such a situation. Also, if the requirements for the issuing of a warrant, which arise out of the

jurisprudence of the BVerfG, were not fulfilled and the search warrant was nevertheless issued,

this will not automatically lead to the inadmissibility of the evidence. Only a conscious and

arbitrary disregard for the “requirement of a judge” makes the results of the search inadmissible

before the court.751

2. 2. 2. Form of undertaking a home search

The provisions which regulate the form of house search in StPO are not as detailed as the

provisions of the Croatian CPA. The provisions of the StPO which relate to the form of a house

search regulate the following matters: time of the search,752 presence of persons during the

search, and written notification about the search.753 Only the provisions about the presence of the

persons during the search shall be further presented here. The occupant of the premises to be

searched may be present during the search. If he/she is absent, his/her representative or adult

relative, a person living in his/her household or a neighbour, shall, if possible, be called in to

assist.754 Where private premises are to be searched in the absence of the judge or the public

prosecutor, a municipal official or two members of the community in the district of which the

search is carried out shall be called in, if possible, to assist. The persons called in as members of

751 Roxin, Claus; Schünemann, Bernd, Strafverfahrensrecht, Ein Studienbuch, Verlag C. H. Beck, München, 2012, p.

286. 752 In principle, searches have to be undertaken during the day. Night shall include, during the period from 1 April to

30 September, the hours from nine o'clock in the evening to four o'clock in the morning. During the period from 1

October to 31 March, night shall include the hours from nine o'clock in the evening to six o'clock in the morning.

Search may be undertaken during the night only in pursuit of a person caught in the act, if there is a danger in delay,

or for the purpose of re-apprehending an escaped prisoner. These restrictions do not apply to premises which are

accessible to anyone at night, or which are known to the police as shelters or gathering places of offenders, as depots

of property obtained through criminal offences, or as hiding places for gambling, illegal trafficking in narcotics or

weapons, or prostitution. See Article 104 StPO. 753 Upon conclusion of the search, the person affected thereby shall, upon his/her request be given a written

notification indicating the reasons for the search. If the search was undertaken in the home of the suspect, the

notification shall also indicate the criminal offence. Upon request, the person affected by search shall also be given a

list of objects which were seized. If nothing suspicious was found, he/she shall be given a certificate to that effect.

See Article 107 StPO. 754 Article 106(1) StPO.

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the community may not be police officers or officials assisting the public prosecutor’s office.755 If

any of the provisions of the StPO which relate to the form of the house search is violated, this

will not lead to the inadmissibility of evidence gathered during the search in criminal

proceedings. The evidence gathered during the search which was conducted without respect for

the provisions of the StPO on the form of a house search, may be used as evidence in criminal

proceedings.756


Based on the presentation of the rules of the Croatian and German criminal law system which

relate to a home search, the following conclusions can be made:

In both legal systems, the matter of a home search represents an issue of Constitutional

regulation. The Croatian Constitution and the German GG both guarantee the right to the

inviolability of the home, but make exceptions to allow for the restrictions of this right through

the possibility of executing a home search. The Croatian Constitution contains more provisions

which regulate the issue of a home search, it foresees the possibility to undertake a home search

on the basis of a court warrant and without a warrant, in relation to the latter search it determines

its material requirements, and it also regulates some questions in relation to the form of a home

search. The German GG, on the other hand, only provides that a search can be undertaken on the

basis of a court warrant, or on the basis of a warrant issued by some other authority designated by

the laws;

- In both legal systems, detailed regulations of the home search for the needs of criminal

procedure are situated in their criminal procedure acts. These acts determine material and formal

requirements for a home search, as well as its form;

755 Article 105(2) StPO. 756 Roxin, Claus; Schünemann, Bernd, Strafverfahrensrecht, Ein Studienbuch, Verlag C. H. Beck, München, 2012, p.

286.

224

- In relation to material requirements, the Croatian CPA requires probability that a criminal

offence has been committed and that persons or objects looked for shall be found in a person’s

home. It does not differentiate material requirements for a home search depending on the status

of the tenant, the same material requirements apply in relation to the home of a suspect and other

persons who are not suspected of having committed a criminal offence. The German StPO, on the

other hand, makes such a difference and in relation to the home of a suspect, a plain assumption

that the perpetrator or the evidence will be found at the suspect’s home is enough to undertake a

search. In relation to the home of other persons, who are not suspected of committing a criminal

offence, stricter criteria apply, which could be equated with probability in the Croatian legal

system;

- In the Croatian legal system a home search can be undertaken either on the basis of a warrant,

or without a warrant. A warrant for a home search may be issued only by a judge as the warrant

has to be written and reasoned. No other authority, judicial or non-judicial may issue a warrant

for a home search. Exceptionally, a home search may be undertaken by the police authorities

without a court warrant, with the requirements under which the police may undertake a home

search without a warrant being strictly regulated by the law. In the German legal system, a home

search may be undertaken solely on the basis of a search warrant. Police authorities have, under

no circumstances, the authority to undertake a home search without a warrant. However, a search

warrant may be issued not only by a judge, but also by the public prosecutor’s office, in a

situation where there is a danger in delay. Croatian and German criminal law systems show

important differences in relation to procedural sanctions for home searches undertaken without a

search warrant. In the Croatian legal system, whenever a search is undertaken without a warrant,

it results in the inadmissibility of evidence gathered thereby in a criminal procedure. The German

legal system, on the other hand, shows more flexibility, and sanctions the absence of a search

warrant with the inadmissibility of evidence gathered thereby only in a limited extent, such as

when the “requirement of a judge” was consciously and arbitrarily disregarded;

- In relation to the form of a house search, provisions of the Croatian legal system are much more

detailed than the provisions of the German legal system. In the former system, some issues

relating to the form of a house search are a matter of Constitutional regulation. The Croatian legal

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system is also stricter in sanctioning the disregard of the prescribed form, if a home search was

undertaken without the presence of two witnesses; its results cannot be used as evidence in a

criminal procedure. In the German legal system, deficiencies in the form never result in the

inadmissibility of evidence gathered in further criminal procedures.

The undertaken presentation and analysis of a home search in Croatian and German criminal law

systems showed that, although similar in the basic approach to a home search, these two systems

show a lot of differences. These differences can be seen in all analyzed aspects: material and

formal requirements for the home search, as well as its form. The undertaken analysis has also

shown that matters in which these two legal systems differentiate can hardly be seen as questions

which relate to procedural technical issues. Differences are much deeper, and some of them even

have a constitutional foundation.

In the following part of the work, the extent to which these differences affect cooperation in

different previously presented models of cross-border evidence gathering shall be analyzed.757

II. HOME SEARCH IN DIFFERENT MODELS OF CROSS-BORDER

EVIDENCE GATHERING

1. Mutual legal assistance model

In the mutual legal assistance model of judicial cooperation in criminal matters, a search has a

special place among the investigative measures that can be the subject of the request for cross-

border evidence gathering. Besides the general grounds for refusal, which apply to any request

for mutual legal assistance,758 specific grounds for refusal exist, which apply only to the search

757 The author contacted the Croatian Ministry of Justice in order to request the statistical data on the number of letter

rogatory per year received which related to the search of premises. The Ministry was unavailable to provide the

information requested, because all the cases that relate to international cooperation in criminal matters are gathered

under a single statistical number. However, the officials working in the Ministry gave an estimation pointing that

cross-border search of premises does occur in practice and that there are approximately 20 requests per year that

relate to this cross-border evidence gathering action. 758 See Article 2 CoE-MLA-1959.

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and seizure of property.759 The search and seizure of property owe their special place among the

investigative measures to their intrusiveness, they stand out from other investigative measures

because they represent an intervention of the State into the private life and property of an

individual.

In the following part of the work, a case study shall be undertaken to show how cross-border

home searches function in relations between Croatia and Germany. In this case study Germany

shall be the requesting, and Croatia shall be the requested State. The purpose of this case study is

to show to what extent the differences between the provisions of the Croatian and German legal

systems which govern a home search, affect cooperation and its goals in different models of

cross-border evidence gathering. Therefore, the analysis shall concentrate on those aspects of

cooperation where the differences between national laws of cooperating States play an important

role. Croatia and Germany are used only as example States and in accordance with this,

cooperation in cross-border evidence gathering between Croatia and Germany shall be presented

through the general scheme of different models, and any bilateral arrangements which alter the

general scheme will not be taken into account.760

1. 1. Germany as the requesting State

In the mutual legal assistance model, the issuing of a request for assistance is not attached to the

fulfilment of any requirements in the criminal legal order of the requesting State. The general

scheme for cross-border evidence gathering in the mutual legal assistance model does not require

the competent authorities of the requesting State to check the availability of the requested

investigative measure under the national law of the requesting State. This means that competent

authorities of the requesting State are not bound by the criminal procedural rules of their legal

order which regulate a certain investigative measure when they are requesting that an

investigative measure be undertaken on the territory of another Member State. In the case of a

759 See Article 5 CoE-MLA-1959. 760 This is especially important for the mutual legal assistance model of judicial cooperation in criminal matters,

where the general European multilateral cooperation scheme has been significantly altered through the conclusion of

numerous bilateral agreements. A bilateral agreement which regulates mutual legal assistance exists also between

Croatia and Germany. It is an Agreement on legal assistance in criminal matters concluded in 1971. For the text of

agreement in Croatian, see

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home search, this means that competent German authorities are not bound by the material and

formal requirements for ordering a home search in the German criminal procedural system. They

just request that a home search be undertaken on the territory of another Member State, in this

case, Croatia. With regards to the form of a home search, it is determined by the law of the

requested State, following the locus regit actum principle. However, the German authorities may

request that certain formalities and procedures prescribed by German law be followed in the

execution of the letter rogatory in Croatia. This means that German authorities may request that

certain provisions of its legal order which relate to the form of a home search be followed by

competent Croatian authorities during the execution of a search warrant.

1. 2. Croatia as the requested State

The competent Croatian authorities are bound by the decision of the German competent

authorities on the type of the investigative measure to be undertaken on their territory. This

means that if a home search is requested by Germany, only that investigative measure may be

executed by Croatia. Competent Croatian authorities do not have the possibility to have recourse

to another kind of investigative measure as the authorities have at their disposal the grounds for

refusal of cooperation which are provided for in the mutual legal assistance instruments, both

general and specific. For the differences between the criminal legal orders of these two countries,

the grounds for refusal which relate to the “consistency with the law of the requested Party”761

are of primary importance. By using these grounds for refusal of cooperation, competent Croatian

authorities may make a home search requested by a German authority depends on material and

formal requirements of a home search arising out of the Croatian criminal legal order. This means

that a home search, although requested in the transnational context, will be subjected to the same

material and formal requirements of a home search which are applicable in the Croatian legal

order in a purely national context. Regarding the form of a home search, it is primarily

determined by Croatian law with formalities and procedures of German law being followed in

Croatia only to the extent to which they are not contrary to the fundamental principles of Croatian

law.

761 Article 5(1)(c) CoE-MLA-1959.

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With regards to material, formal requirements and form of the home search in Croatian and

German criminal procedural system, the differences between the two legal orders, and its effects

in the area of cross-border evidence gathering pursuant to the mutual legal assistance model, the

following conclusions can be made:

- Material and formal requirements for a home search of the criminal legal order of the requesting

State play no role in the mutual legal assistance model of cross-border evidence gathering. A

home search which is undertaken on the territory of the requested State is subjected to material

and formal requirements of a home search which are applicable in the criminal legal order of the

requested State;

- The form of a home search in the territory of the requested State is determined by the law of the

requested State, with the possibility to follow the formalities and procedures of the legal order of

the requesting State, to the extent that this is not contrary to the fundamental principles of law of

the requested State.

2. Mutual recognition model

In the mutual recognition model of cross-border evidence gathering, just like in the mutual legal

assistance model, a home search has a special place. In the FD EEW special position of a (home)

search is seen in the provisions which regulate grounds for refusal of cooperation. In relation to

the absence of a validation procedure, as grounds for refusal of cooperation, the FD EEW

prescribes that the executing authority may refuse to carry out a search or seizure in the execution

of an EEW, if the warrant has not been validated by a judicial authority in the issuing State.762 In

relation to double criminality, these grounds for refusal apply only if it is necessary to carry out a

search or seizure.763 Therefore, in the FD EEW special position of a (home) search is visible from

the fact that certain grounds for refusal of cooperation apply only if a search and seizure is

762 Article 11(4) FD EEW. 763 And in relation to offences which found their place on the list, it does not apply even if it is necessary to carry out

search or seizure in order to execute the EEW. See Article 14 FD EEW.

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necessary in order to execute the EEW. The same attitude was characteristic of the mutual legal

assistance model, and is also applied in another mutual recognition instrument which applies in

the area of cross-border evidence gathering – D EIO. In the D EIO, a search belongs to a group of

coercive investigative measures. Coercive investigative measures have a special place in the

regime of the D EIO. Only in relation to these measures is the executing authority allowed to

have recourse to a different kind of investigative measure, if the measure indicated in the EIO

does not exist under the law of the executing State, or would not be available in a similar

domestic case.764 Furthermore, some grounds for refusal of cooperation can be applied only in

relation to coercive investigative measures, including a house search.765

The effects of the differences between the Croatian and the German criminal legal order in

relation to a home search in the mutual recognition model of cross-border evidence gathering

shall be presented in the following part of the work.

2. 1. Germany as the issuing State

The way in which the principle of mutual recognition is applied in the FD EEW, on the one hand,

and in the D EIO on the other, differs significantly. This is why the position of Germany as the

issuing State will be presented separately for the FD EEW and for the D EIO.

In the FD EEW, the issuing authority does not decide about the investigative measures that are

going to be undertaken on the territory of the executing State, but only about the evidence that is

going to be collected there. The decision on the investigative measure to be carried out on the

territory of the executing State in order to execute the EEW is left to the executing authority. This

means that the issuing authority in Germany cannot order the undertaking of the home search on

the territory of the executing State. It can only order that certain evidence is to be collected there,

but the choice of the investigative measure is left to the executing authority. However, when the

competent authority of the issuing State decides about the issuing of the EEW, it is bound by the

requirements of its legal order which relate to the gathering of evidence. It needs to be satisfied

764 Article 10(1) D EIO. 765 Article 11(2) D EIO.

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that the objects, documents or data sought could be obtained under the law of the issuing State in

a comparable case if they were available on the territory of the issuing State, even though

different procedural measures might be used.766 In relation to the form of the investigative

measure, the FD EEW applies the same approach which was characteristic of mutual legal

assistance instruments. The form of the investigative measure is regulated by the law of the

executing State, but formalities and procedures expressly indicated by the issuing authority shall

be followed, unless they are contrary to the fundamental principles of law of the executing

State.767

In the D EIO, the issuing authority decides about the investigative measure that is going to be

undertaken on the territory of the executing State. This means that German judicial authorities

order the undertaking of a home search on the territory of Croatia. However, the competent

German authorities need to be satisfied that a home search would be available under their own

law in a similar domestic case. This means that the requirements for the issuing of a search

warrant which are prescribed by German law need to be fulfilled if competent German authorities

want to order the undertaking of a home search on the territory of Croatia. In relation to the form

of house search, the attitude is the same as in all the previous analysed mutual legal assistance

and mutual recognition instruments, the form of home search is determined by the law of the

executing State, but formalities and procedures expressly indicated by the issuing authority shall

be followed, unless they are contrary to the fundamental principles of law, of the executing

State.768

2. 2. Croatia as the executing State

The position of Croatia, as the executing State, shall be presented separately in the EEW and in

the EIO regime.

766 Article 7(b) FD EEW. 767 Article 12 FD EEW. 768 Article 9(2) D EIO.

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In the EEW regime, the executing authority, which means the competent Croatian authority,

decides about the investigative measure that is going to be undertaken on Croatian territory in the

execution of the EEW. When making such a decision, the competent Croatian authority is bound

by the requirements for ordering a home search which are prescribed in Croatian criminal

procedural law. Croatian criminal procedural law is also decisive for the form of home search,

unless some formalities and procedures are undertaken following the rules of the procedural order

of the issuing State.

In the EIO regime, the issuing authority, which is a competent German judicial authority, decides

about the investigative measure to be undertaken on Croatian territory, which means that it orders

the undertaking of a home search on Croatian territory. However, the executing authority, the

competent Croatian judicial authority, may have recourse to a different kind of investigative

measure, if a home search is not available under Croatian law in a similar domestic case. In

relation to the form of home search, what was said before with regards to the EEW scheme, also

applies here.


Regarding the differences in the legal regime of a home search in German and Croatian criminal

procedural law systems, and their effects in the area of cross-border evidence gathering pursuant

to the mutual recognition model, the following conclusions can be made:

- In relation to the requirements for a house search, both the requirements of the legal order of the

issuing and the executing State are of importance in the cross-border evidence gathering pursuant

to the mutual recognition model. For certain evidence gathering actions to be possible and

pursuant to the mutual recognition model, that evidence gathering action needs to be available

both under the law of the issuing, and under the law of the executing State. The bigger the

differences are between these two criminal procedural systems, the bigger the problems in the

area of cross-border evidence gathering will be;

232

- With regards to the form of home search, the mutual recognition model contains rules which do

not differentiate from the rules that govern cross-border evidence gathering in the mutual legal

assistance model. Provisions which regulate the form of home search, emanating from both legal

orders and their respective States are applicable. The form of home search is primarily

determined by the law of the executing State, but with an obligation to follow the formalities and

procedures requested by the issuing State, unless they are contrary to the fundamental principles

of law of the executing State.

233

Chapter V. PROPOSED ALTERNATIVE MODELS

Besides the mutual legal assistance and mutual recognition models, which already apply in the

area of cross-border evidence gathering in European Union criminal law, other models of judicial

cooperation in criminal matters are proposed. The creators of these models try to eliminate the

shortcomings of the applied models of cross-border evidence gathering by proposing new

concepts of judicial cooperation in criminal matters. Three proposed models shall be presented

and analysed here, the first two models offer new concepts for the development of horizontal

judicial cooperation in criminal matters. It is the model of a fully supranationalized cooperation

law and the model of transnational procedural unity. The third model proposes the development

of a genuinely European law enforcement authority and it is the model which calls for the

development of the Office of the European Public Prosecutor.

I. MODEL OF A FULLY SUPRANATIONALIZED COOPERATION LAW

When the introduction of the principle of mutual recognition in the area of judicial cooperation in

criminal matters was presented, its acceptance as the cornerstone of judicial cooperation in

criminal matters in the EU was explained by the absence of a willingness on the side of Member

States to give up their sovereignty in the area of criminal law. The main features of the criminal

justice systems of Member States are deeply rooted in their historical and cultural heritage,769 and

States see them as an essential part of their sovereignty and identity. One right which they are not

ready to give up for the interests of effective judicial cooperation in criminal matters in the EU.

For these reasons, a comprehensive harmonization of national substantive and procedural

criminal laws, which is the best way to improve the effectiveness and acceptance of human rights

cooperation models of transnationally effective criminal law, is not an option which belongs to

the domain of political reality.

769 On the criminal (procedural) law differences between the States and their rootedness in the national culture, see

Hörnle, Tatjana, Unterschiede zwischen Strafverfahrensordnungen und ihre kulturellen Hintergründe, ZStW

117(2005), p. 801-838.

234

Taking this fact of a political reality as a starting point of his analysis, in a paper published in

2000, Sieber brought forward the idea of a fully supranationalied cooperation law (including the

relevant rules of substantive and procedural law required for cooperation proceedings) which

would form the legal basis for EU cooperation in criminal matters.770 The idea was further

developed by the same author in a paper published in 2009.771

1. Main characteristics of the model

The main characteristic of the model is that requests or orders for cooperation should neither be

based on the law of the requesting/issuing State nor on the law of the requested/executing State

but on a comprehensive and harmonized supranational legal order (while also defining the

respective offences and the respective coercive powers for which cooperation is provided). This

means that the (substantive and procedural) codes applied by the nation states for their own

national investigations and trials remain untouched, but that legal assistance from the territory of

other EU Member States is only granted (and must be granted) for crimes and for the

investigation methods which are defined in the supranational codes of cooperation law.

With regards to criminal procedural law, such a supranational cooperation code could foresee

that, in relation to EU cooperation proceedings, every Member State must execute all the

investigative measures which found their place on a list given in the code. The existence of the

differences between the national criminal procedural codes of Member States would remain

untouched. However, such differences could no longer present an obstacle to the obligation that

certain investigative measures must be executed transnationally. The same logic applies to

substantive criminal law, a supranational cooperation code could define with regards to which

offences cooperation must be granted. In this situation, differences which exist between national

substantive criminal laws, and which can present a cooperation obstacle, could no longer be

asserted in transnational proceedings in Europe.

770 Sieber, Ulrich, Bekämpfung des EG-Betrugs und Perpsktiven der europäischen Amts- und Rechtshilfe, ZRP

5(2000), p. 190 and further. 771 Sieber, Ulrich, Die Zukunft des Europäischen Strafrechts, Ein neuer Ansatz zu den Zielen und Modellen des

europäischen Strafrechtssystems, ZStW 121 (2009), p. 35-39.

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2. Its advantages and disadvantages

This model shows a number of advantages, both in relation to the comprehensive harmonization

of national criminal laws, as well as to the model of mutual recognition. With regards to the

comprehensive harmonization of national criminal laws, since the creation of a supranational

cooperation code it leaves national criminal laws untouched and politically it is much easier to

achieve. It is reasonable to expect that Member States will be more open to the adoption of

supranational European rules which will govern cooperation proceedings only, than for the

adoption of harmonized European substantive and procedural criminal law rules, which would

erase the differences between national criminal orders.772 However, it should also be noted that

the adoption of supranational European cooperation rules, in a future perspective, lead to a

greater willingness of Member States to accept comprehensive harmonization of national

substantive and procedural criminal rules. Namely, the fact that a Member State undertakes an

investigative technique in the execution of a cooperation request/order, and that investigative

technique is not applicable in a similar national case, is in the long run unacceptable, and should

lead to the introduction of such an investigative technique for purely national cases (outside of

cooperation proceedings). In this sense, the creation of a supranational cooperation code leads to

the “back door harmonization” of national criminal legal orders of Member States. Having this in

mind, this model can be seen as a transitional model towards the full harmonization of national

criminal laws of Member States. In comparison to the mutual recognition model, the model of a

fully supranationalised cooperation code solves the problem of the hybridisation of a European

transnational criminal order which is characteristic of the model of mutual recognition. Instead of

being founded in a multitude of different legal orders, cooperation request/order is founded in

only one legal order which is uniformly applicable throughout the territory of the EU.773 The

acceptance of a supranational cooperation code would be very beneficial in the area of cross-

border evidence gathering, since it would solve the problems which arise from the differences in

the national legal orders of Member States, and which are visible, both in the phase of evidence

772 Sieber, 2009, 36-37. 773 Sieber, 2009, 36.

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gathering in the executing State, as well as in the phase of use of evidence in the criminal

procedure of the issuing State.774

Besides the advantages, this model also shows some disadvantages. First of all, as it has already

been pointed out, it can lead to (at least temporary) the existence of different criminal law

standards within a single national criminal justice system. One set of standards would apply to

transnational cases (in the framework of cooperation proceedings), and the other in “pure”

national cases.775 This is visible, for example, in the situation where a certain investigative

technique is not applicable to a “national” case, but it is applicable in a transnational case.

Another issue refers to the deficient capacities of this model to serve as the basis for the

foundation of an area of freedom, security and justice. Although this model helps to overcome the

hurdles put before the cooperation proceedings with the differences of national criminal legal

orders, it does not create one criminal legal order within the borders of the EU. It still does not

ensure legal security, predictability of rules, and equality of treatment for the individual in

various European national criminal legal orders.776 Therefore, it should be seen as a transitional

model towards the full harmonization of national substantive and procedural criminal laws.

II. MODEL OF TRANSNATIONAL PROCEDURAL UNITY

A model of transnational procedural unity, as a possible solution for the future of judicial

cooperation in criminal matters in the European Union, has been developed by a group of

international scholars led by German scholar Schünemann. This group of scholars developed their

work upon the critique of the principle of mutual recognition and its use as the cornerstone of

judicial cooperation in criminal matters in the European Union. The work of this group of

scholars has been preceded by a group of German scholars, who published in 2004, an

Alternative Proposal for European Prosecutions,777 which was also based on the critique of the

774 Sieber, 2009, 37. 775 Sieber, 2009, 38-39. 776 Ibid, 38. 777Alternativentwurf Europäische Strafverfolgung. For the content of the Proposal, see Schünemann, Bernd,

Grundzüge eines Alternativ-Entwurfs zur europäischen Strafverfolgung, ZStW 116 (2004), p. 376-399, Militello,

Vincenzo, Der Alternativ-Entwurf Europäische Strafverfolguing: ein Januskopf, ZStW 116(2004), p. 436-444,

237

principle of mutual recognition and its effects for the development of European Union criminal

law.

In 2006, as a result of a research project which was financed by the European Commission,778 a

group of international scholars led by Schünemann published a Proposal for the Regulation of

Trans-national Criminal Proceedings in the European Union.779 Rejecting the principle of

mutual recognition as the cornerstone of judicial cooperation in criminal matters, because it

results in an “inappropriate conflation and hybridisation of various, disparate orders”,780 this

group proposed the introduction of a new model of judicial cooperation in criminal matters: the

model of transnational procedural unity.781 Besides the rejection of the principle of mutual

recognition, the main characteristics of this model, which will be presented below, are: (I.)

applicability of substantive and procedural laws of only one Member State (the investigating

State), and (II.) increased care for the interests of the defendant.

1. Applicability of substantive and procedural rules of only one Member State

The main point of critique of the principle of mutual recognition is that it creates a hybrid

procedural system, through the simultaneous applicability of the criminal justice systems of all

Member States. In order to remedy this, the transnational procedural unity model proposes the

applicability of substantive and procedural criminal law rules of only one Member State in a

single case.782 However, before a case is assigned to a single Member State, (1) a clear line has to

be drawn between national and transnational cases and (2) binding rules have to be developed for

early allocation of jurisdiction. Only after a single Member State is entrusted with the case as an

investigating State (3) rules on applicability of substantive and procedural criminal law

provisions can be determined.

Vogel, Joachim, Licht und Schatten im Alternativ-Entwurf Europäische Strafverfolgung, ZStW 116(2004), p. 400-

423. 778 Schünemann, Bernd, Roger, Benjamin, Stellungnahme zum Grünbuch der EU-Kommission “Erlangung

verwertbarer Beweise in Strafsachen aus einem anderen Mitgliedstaat“(KOM [2009] 624 endg.), Zeitschrift für

Internationale Strafrechtsdogmatik (ZIS), 2/2010, p. 93. 779 Schünemann, Bernd (Ed.), Ein Gesamtkonzept für die europäische Strafrechtspflege – A Programme for

European Criminal Justice, Carl Heymanns Verlag, 2006, p. 255-311. 780 Schünemann, 2006, 264. 781Modell der transnationalen Verfahrenseinheit. 782 Schünemann/Roger, 2010, 93.

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1. 1. Differentiation between national and transnational cases

The Transnational procedural unity model is a model, as its name suggests applicable to

transnational criminal proceedings. The first premise of the model is a clear difference between

national and transnational criminal proceedings. Whenever a case involves a certain connection

with another Member State of the European Union, the case has to be marked as transnational

criminal proceedings. It can be that the defendant is not present within the territory of the State,

certain investigative measures need to be undertaken on the territory of another State, the offence

was committed or its results occurred on the territory of another State.783 In all the cases

mentioned, national prosecution authorities of a Member State have a transnational criminal

procedure at their disposal. This triggers an obligation to notify Eurojust. After Eurojust has been

notified, a consultation process starts, the purpose of which is to determine which of the Member

States that are involved in the case at hand, shall act as the responsible investigating State.

1. 2. Determination of the responsible investigating State

The goal of the transnational procedural unity model is to determine, as early as possible in an

investigation that is to be treated as part of a transnational criminal procedure, which of the States

involved is going to have jurisdiction over the case at hand. The State which is given jurisdiction

is going to act as the responsible investigating State. In order to be able to designate jurisdiction

to only one Member State, the Proposal gives a number of criteria for the determination of

jurisdiction and prescribes the procedure in which jurisdiction is determined.

European Union criminal law does not contain binding rules on jurisdiction.784 Therefore, it is

possible and in practice it often occurs, that whenever there is a case with a transnational

783 Article 1(1) of the Proposal for the Regulation of Trans-national Criminal Proceedings in the European Union

(further on: Proposal). 784 In December 2009, the EU has adopted the Framework Decision 2009/948/JHA on prevention and settlement of

conflicts of exercise of jurisdiction in criminal proceedings (OJ L 328, 15. 12. 2009), the purpose of which was to

„prevent unnecessary parallel criminal proceedings concerning the same facts and the same person in the European

Union“ (Report from the Commission to the European Parliament and the Council on the implementation by the

Member States of Framework Decision 2009/948/JHA of 30 November 2009 on prevention and settlement of

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dimension, different Member States claim jurisdiction over the case and initiate different criminal

proceedings against the same person(s) for the same act(s). This not only complicates the position

of the defendant, who needs to face different criminal investigations in different Member

States,785 but is also unacceptable from the point of view of procedural economy. In order to put

an end to this, the Proposal sets out criteria pursuant to which of the Member States who claim

jurisdiction shall be responsible for the case at hand. The primary criterion is the application of

the principle of territoriality, the responsible investigating State shall be the Member State in

which the alleged criminal act was committed.786 If the defendant acted in more than one

Member State, the jurisdiction will lie with the Member State in which the results of the offence

occurred. If the results of the offence occurred in more than one Member State, the Member State

in which the defendant resides shall have jurisdiction. If the proceedings involve more than one

defendant who are residents of different Member States, the jurisdiction will lie with the Member

State where most of the important evidence is located.787

Besides the criteria for determining jurisdiction, the Proposal also prescribes the procedure in

which jurisdiction is determined. After the investigating authority of a Member State has

established that the case involves a transnational dimension, it needs to inform Eurojust thereof.

Eurodefence is also involved in the procedure for determining jurisdiction, with jurisdiction

primarily being determined by an agreement of Member States who claim jurisdiction in a

particular case. Member States are obliged to respect the prescribed criteria for determining

conflicts of exercise of jurisdiction in criminal proceedings, Brussels, 2. 6. 2014, COM(2014) 213 final, p. 3).

However, this Framework Decision does not contain any binding rules on jurisdiction; it merely sets out a direct

consultation procedure in case parallel proceedings are discovered. The purposed of the direct consultation procedure

is to determine by an agreement, which of the Member States involved is best placed to continue to prosecute the

crime. 785 And also faces a risk of ne bis in idem violation. On the interconectedness between the positive conflict of

jurisdiction and the principle ne bis in idem in EU criminal law, see the Green Paper On Conflicts of Jurisdiction and

the Principle of ne bis in idem in Criminal Proceedings, Brussels, 23. 12. 2005, COM(2005) 696 final. 786 On the principle of territoriality in national criminal laws of Member States, see for Croatia, Novoselec, Petar,

Bojanić, Igor, Opći dio kaznenog prava, Pravni fakultet Sveučilišta u Zagrebu, Zagreb, 2013, p. 96-98, for Germany

Jescheck, Hans-Heinrich, Weigend, Thomas, Lehrbuch des Strafrechts, Allgemeiner Teil, Duncker & Humblot,

Berlin, 1996, p. 167-168. 787 Article 2(2) of the Proposal. Proposal also foresees the possibility to depart from the prescribed criteria, and to

change a decision on jurisdiction during the investigation. Regarding the first possibility, it is possible to depart from

the prescribed criteria when „the focus of the alleged act“ is located in a different Member State, or if the legitimate

interests of the defendant require such a departure (Article 2(3) of the Proposal). Regarding the second possibility, if

during the investigation a change of focus occurs, the previously determined jurisdiction can be altered. This can be

done only once and only until the investigation is concluded (Article 2(5) of the Proposal). For the criteria for

determining jurisdiction in the transnational procedural unity model, see also Schünemann/Roger, 2010, 98-99.

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jurisdiction. If jurisdiction cannot be determined by an agreement between Member States

involved, or if the agreement is vetoed by Eurodefence, jurisdiction is determined by the decision

of Eurojust.788

The Proposal also foresees that the decision on the determination of the investigating State can be

appealed. It can be appealed either by the defendant or by a Member State claiming jurisdiction

in a particular case. The decision on the legal remedy is rendered by the European Criminal Court

and this necessitates the establishment of a criminal court of the EU.789

1. 3. Applicable substantive and procedural criminal law

Once the responsible investigative State has been determined following the criteria and the

procedure described above, that State not only gains exclusive jurisdiction over the criminal

conduct, but its substantive and procedural criminal laws, in relation to the case at hand and

becomes applicable throughout the entire territory of the European Union. Even more so, its

officials gain the power to undertake investigative acts in all other Member States. This is the

core of the transnational procedural unity model, applicability of only one criminal law

throughout the European Union, instead of simultaneous applicability of criminal laws of

different Member States, which is characteristic for the mutual recognition model and leads to

hybridisation of the criminal procedural order. The Proposal is based on the premise that criminal

laws of every Member State form a closed, balanced system. Although these laws differ

significantly, each of them, for itself, represents a system in which a fine balance is achieved

between the interests of the effective prosecution of crime, on the one hand, and the protection of

fundamental rights of the individual, on the other. When these systems are combined, as in the

mutual recognition model, originally created balance is disturbed in favour of the effective

prosecution of crime. The proper way to regain the lost balance is to apply the substantive and

procedural law of only one Member State in the entire territory of the European Union. Criminal

laws of a Member State which has the closest connection with the transnational criminal offence

788 Article 2(4) of the Proposal. 789 Schünemann, 2006, 263.

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in question, and which is therefore determined as the responsible investigative State, should be

applicable in the entire territory of the Union.790

In relation to substantive criminal law, the Proposal determines that “[t]he conduct shall be

evaluated according to the law of the investigating State”.791 Criminality of the act under the law

of the investigating State is enough to undertake investigative acts on the territory of all other

Member States. The position of other Member States towards the criminality of the prosecuted

act is not of relevance, which means that the principle of double criminality plays no role in the

transnational procedural unity model of judicial cooperation in criminal matters.

In relation to criminal procedural law, the Proposal prescribes that “[a]admissibility, form and

appealability of the investigative acts are determined on the basis of the law of the investigating

State”.792 In the mutual recognition model, admissibility of the investigative act is determined by

the law of the issuing State, but its form is determined by the law of the executing State. The

Transnational procedural unity model determines that both, admissibility of the act and its form

are determined by the law of the investigating State. This means that the way in which a certain

investigative act is executed is not determined by the combination of the locus regit actum and

forum regit actum principles, but by the full applicability of the forum regit actum principle.793

Not only does the substantive and procedural criminal law of the investigative State become

applicable on the territory of all other Member States, but the officials of the investigative State

gain competence to undertake investigative acts on the territory of all other Member States. The

officials of the investigating State may carry out investigative acts in all other Member States, but

may also have these acts undertaken by the locally responsible officials of the Member State on

the territory of which the investigative act is undertaken.794

However, the applicability of substantive and procedural criminal laws of the investigating State,

as well as the authority of its officials to undertake investigative acts on the territory of all other

790 Schünemann, 2006, 264. 791 Article 2(6) of the Proposal. 792 Article 4(3) of the Proposal. 793 Schünemann/Roger, 2010, 93. 794 Article 4(1) of the Proposal.

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Member States has its limitations. In relation to the applicability of the criminal laws of the

investigating State, the limitation applies only in relation to coercive measures. The Proposal

prescribes that coercive measures shall not be conducted if they are incompatible with the

European Convention on Human Rights or with the foundations of the law of the executing

State.795 The possibility for the executing State to refuse the execution of a coercive investigative

measure on its territory if that measure is incompatible with the European Convention on Human

Rights is explained by the fact that the executing State can never avoid being bound by the

Convention.796 Expression “foundations of the law of the executing State” refers to the ordre

public of the executing State and therefore to the application of the constitutional foundations of

its legal order. In this way, the ordre public of Member States becomes the “bedrock of

transnational criminal procedure” in the European Union.797 With these two limitations, the

executing State preserves control of what is happening on its territory in relation to coercive

investigative measures. The executing State is not entitled to any other assessment of the request

of the responsible investigating State. In relation to all other investigative measures, which are

not of a coercive character, the executing State has no control over what is happening on its

territory. Thus, the investigating State freely exports its substantive and procedural criminal law

to the territory of the executing State, with no limitations attached to it. A special regime applies

for the confiscation of assets of significant value and the deployment of undercover police

investigators and informants. They are to be executed by the authorities of the executing State

only if they are also permitted by the law of the executing State.798 The use of these, particularly

intrusive measures, is therefore limited only if these measures are also available under the law of

the executing State. This means that the admissibility of these measures is not only evaluated by

the law of the investigative State, but also by the law of the executing State. Only if such a

measure is admissible both, under the law of the issuing and the executing State, can it be

executed pursuant to the transnational procedural unity model.799

795 Article 4(3) of the Proposal. 796 Schünemann, 2006, 265. 797 Schünemann, 2006, 265. 798 Article 4(4) of the Proposal. 799 This rule represents the application of the principle of most favorable treatment (Grundsatz der

Meistbegünstigung). For the application of this principle int he law of international cooperation in criminal matters,

see Schünemann/Roger, 2010, 94.

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If the execution of a coercive investigative measure has been refused in the executing State

because one of the reasons for refusal explained above existed, competent authorities of the

executing State need to inform Eurojust thereof. Eurojust has the right of appeal against that

decision, and the appeal is decided by the highest criminal court of the executing State.800 The

purpose of this provision is twofold: on the one hand, the competence of the highest criminal

court of the executing State prevents national lower courts from “paralysing trans-national

proceedings by stylising every peculiarity of their legal order as a matter of the ordre public”,801

and, on the other hand, by concentrating the right of appeal in Eurojust, it is ensured that the

European, and not the national egoistic perspective is taken into account.802

Certain limitations also apply with regards to the authority of the officials of the investigating

State to undertake investigative measures on the territory of all other Member States. The general

rule of the Proposal is that the responsible prosecuting authority of the investigative State may

carry out investigatory acts in all Member States or can have these acts carried out by the locally

responsible criminal prosecution authority.803 In the latter case, the officials of the investigative

State limit themselves to ordering the investigatory measures, but the measures are undertaken by

the responsible prosecuting authorities of the executing State, which apply the law of the

investigating State, since that law determines not only the admissibility of the measure, but also

the form of its execution. However, this general rule applies only to non-coercive measures. If the

responsible prosecuting authority of the investigating State wants to have a coercive investigating

measure undertaken in the territory of the executing State, it needs to address the responsible

prosecuting authority of the executing State, which is going to coordinate the undertaking of the

measure by the agencies of the executing State.804 Therefore, the responsible prosecuting

authority of the investigating State cannot directly order the undertaking of the investigative

measure to the agencies of the executing State, but needs to address the responsible prosecuting

authority of the executing State.805

800 Article 6(3) of the Proposal. 801 Schünemann, 2006, 268. 802 Schünemann, 2006, 268. 803 Article 4(1) of the Proposal. 804 Article 4(2) of the Proposal for the Regulation of Trans-national Criminal Proceedings in the European Union. 805 Schünemann, 2006, 264.

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2. Increased care for the interests of the defendant

The position of the defence becomes increasingly burdensome in a case which includes a

transnational dimension.806 The transnational procedural unity model brings a number of

advantages for the defence in transnational criminal proceedings. The basic concept of this

model, the applicability of only one substantive and procedural criminal law in transnational

context, brings benefits to the position of the defence, because the defence does not have to face

the different substantive and procedural criminal laws of different Member States. Another

important characteristic of the transnational procedural unity model and a prerequisite for the

application of only one substantive and procedural criminal law, is the early allocation of

jurisdiction to only one Member State. This is also beneficial for the defence, because early

allocation of jurisdiction prevents forum shopping and multiple prosecutions from being

undertaken in different Member States against the same defendant for the same acts.807 However,

that is not all. Benefits for the defence do not derive only from the basic concepts of the model of

transnational procedural unity; they are also a consequence of special provisions in the Proposal

for the Regulation of Trans-national Criminal Proceedings in the European Union. Two groups of

provisions are especially beneficial for the defence: (1.) the establishment of Eurodefence and its

functions, and (2.) defendant’s right of appeal.

2. 1. Eurodefence and its functions

The position of the defence is significantly weakened in a case which includes a transnational

dimension.808 On the one hand, the position of the prosecution becomes stronger through the use

of mechanisms of judicial cooperation in criminal matters. In the European Union context, this is

especially the case, with the introduction of the principle of mutual recognition which

806 About the problems the accused and his defence counsel are confronted with in a case of transnational criminal

prosecution, see Nestler, Cornelius, European Defence in Trans-national Criminal Proceedings, in Schünemann,

Bernd (Ed.), Ein Gesamtkonzept für die europäische Strafrechtspflege – A Programme for European Criminal

Justice, Carl Heymanns Verlag, 2006, p. 418. 807 Schünemann, 2006, 301. 808 Generally about the position of the defence in European criminal procedural law, see Nestler, 2006, 416-418, and

Scwarc, Andrezj, Eurodefence – Support for the Defence, in Schünemann, Bernd (Ed.), Ein Gesamtkonzept für die

europäische Strafrechtspflege – A Programme for European Criminal Justice, Carl Heymanns Verlag, 2006., p. 429-

430.

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significantly raises the possibilities for transnational law enforcement. Along with this is the

development of specialised European Union institutions, the purpose of which is to help the

organization of prosecution in a transnational context, such as Eurojust or the European Judicial

Network. On the other hand, if a case includes a transnational dimension, the defence is faced

with numerous problems which arise out of the fact that the defence needs to be organized in

foreign states. Therefore, in a case which includes a transnational dimension, it is very difficult to

preserve the procedural balance.809 The procedural balance in a transnational criminal procedure

can be re-established through the strengthening of the defence. The transnational procedural unity

model proposes the creation of a specialised European Union institution, Eurodefence, the

purpose of which is to strengthen the position of the defence in transnational criminal procedure.

Eurodefence should be organised as a European Union institution which acts solely in the

interests of the defendant. It should be composed of two, strictly separated divisions: the division

of “Legal Protection” and the division of “Support”. The division for “Legal protection” should

act in those parts of the transnational proceedings which are confidential to the defendant. When

the defendant becomes aware that a transnational criminal procedure is taking place, the division

for “Legal protection” stops its activities. From that moment on, the defendant is able to have his

or her interests advanced by a defence counsel of his or her choice. As long as the proceedings

are being conducted covertly, the “Legal protection” division has the right to exercise the

following powers in the interests of the defendant: it has the right to participate in the

proceedings for the determination of the responsible investigating State, it has the right to be

informed about the procedural steps undertaken, and it has the right to exercise legal remedies in

case of serious investigatory intrusions.810 Once the defendant has become aware that a

transnational criminal procedure is being conducted against them, another division of

Eurodefence is activated. It is the division “Support”, the goal of which is to assist the defendant

and their defence counsel in the transnational criminal procedure, especially through the

establishment of contacts, the coordination of the defence which involves multiple defence

counsels in different Member States, the provision of information and documents, and financial

support.811

809 On the equality of arms in the context of tzransnational criminal proceedings, see Bachmaier Winter, 2010, 587. 810 About the rights of the „Legal protection“ division of Eurodefence, see Article 34 of the Proposal. 811 About the rights of the „Support“ division of Eurodefence, see Article 25 of the Proposal.

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2. 2. Defendant’s right of appeal

Through creating a specialised European Union institution, the purpose of which is to protect the

interests of the defence, the transnational procedural unity model of judicial cooperation in

criminal matters tries to improve the position of the defence through systematically granting it the

right of appeal against all decisions that might be of interest to the defence. In these stages of the

proceedings, which the defence is unaware of due to it being confidential, the right of appeal is

nevertheless safeguarded through the involvement of Eurodefence.

In the part of the procedure where the responsible investigating State is determined, the interests

of the defence are protected through the involvement of Eurodefence. Eurodefence participates

together with Eurojust in consultations between the interested States, the purpose of which is to

determine which one of them is going to act as the responsible investigating State.812 Eurodefence

also has the right to object to the agreement of the States concerning the determination of the

responsible investigating State and in the latter case, the decision lies with Eurojust.813 After the

defendant becomes aware of the decision on the responsible investigating State, he or she can

appeal against the decision. The appeal is decided by the European Criminal Court.814

When it comes to investigative measures which are undertaken within the framework of

transnational criminal procedure, the right of appeal is again divided between Eurodefence and

the defence. In those parts of the procedure which are confidential to the defendant, Eurodefence

has the right to appeal against severe investigatory measures, such as the interception of

telecommunications and eavesdropping measures in private premises.815 Regarding the

defendant’s right of appeal, appealability of all investigative measures is determined by the law

of the investigating State.816 However, certain investigative measures can also be appealed in the

executing State. Those investigative measures which need to be admissible both under the law of

the investigating and under the law of the executing State, confiscation of assets of significant

value and the deployment of undercover police investigators and informants, can also be

812 Article 2(2) of the Proposal. 813 Article 2(4) of the Proposal. 814 Article 3(1) of the Proposal. 815 Article 34(2) of the Proposal. 816 Article 4(3) of the Proposal.

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appealed in accordance with the law of the executing State.817 The defendant also has a limited

right to legal remedy in the executing State against the coercive investigating measures, only if he

or she alleges that the measure is incompatible with the European Convention for Human Rights

or the principles of the law of the executing State.818


A group of international scholars developed an interesting concept for the future of transnational

prosecution in the European Union. This new concept is based on the critique of the principle of

mutual recognition and its effects in the area of judicial cooperation in criminal matters in the

EU. The critique of the principle of mutual recognition is twofold: first, simultaneous

applicability of criminal procedural orders of different Member States, which is characteristic of

the principle of mutual recognition, leads to hybridisation of procedural order, both

transnationally and nationally. The procedural system thus created on the transnational level

represents a mixture of different procedural orders and therefore a system which is lacking

internal coherence and balance. At the same time, the combination of different criminal legal

orders in the mutual recognition model disturbs the internal balance and coherence of national

legal orders of Member States. Second, the mutual recognition model is a model of cooperation

which was primarily developed in order to increase the efficiency of judicial cooperation in

criminal matters, and it does not take into account enough, the interests of the defence in a

transnational criminal procedure. In order to remedy these two basic shortcomings of the mutual

recognition model, international scholars grouped around the German scholar Schünemann

proposed the creation of a transnational procedural unity model, the basic characteristics of which

are: the applicability of substantive and procedural criminal laws of only one Member State in a

case which involves a transnational dimension, and the strengthening of the position of the

defence to counter-balance the increased efficiency of the prosecution in a transnational context.

Both of these changes offer the perspective for the creation of a balanced and coherent legal order

for transnational criminal prosecution. Through the applicability of the criminal legal order of

only one Member State, the internal coherence and balance of the legal order for transnational

817 Article 6(1) of the Proposal. 818 Article 6(2) of the Proposal.

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criminal procedure is safeguarded. By strengthening the position of the defence through the

development of an EU institution, the purpose of which is to promote the interests of the defence

in a transnational criminal procedure, a balanced system is created where both, the prosecution

and the defence, have equal opportunity to affect the outcome of the case.

On the other hand, it needs to be noted that the transnational procedural unity model for judicial

cooperation in criminal matters demands much more from the executing State than the mutual

recognition model. While in the mutual recognition model only admissibility of the measure is

evaluated pursuant to the law of the issuing State, while its form is determined by the law of the

executing State, in the transnational procedural unity model both admissibility and the form of

the measure is evaluated pursuant to the law of the investigating State. This means that the

officials of the executing State, which undertake the investigative measure, will have to apply the

law of a foreign State the investigating State, and not their own law the law of the executing

State. This aspect significantly affects the practical applicability of the model: it is difficult to

imagine how criminal law enforcement authorities of the executing State could be capable of

applying the law of the issuing State, when they normally have no knowledge about foreign

criminal law and its practice. These challenges are even more visible in an area which is legally

technical and extremely demanding such as the area of criminal evidence. The executing State

has very limited possibilities to refuse the execution of coercive investigative measures on its

territory. Furthermore, the officials of the investigating State can freely operate on the territory of

the executing State, as long as they are not executing coercive investigative measures. This model

is very ambitious not only for the reasons enumerated above, but also because it presupposes the

creation of two further supranational institutions at the level of the EU. It presupposes the

creation of a European Criminal Court and the establishment of Eurodefence, an institution the

purpose of which is to promote the interests of the defence in transnational criminal procedure.

For all these reasons, the transnational procedural unity model (thus far) remains a proposed

concept which is not applied in any of the instruments of judicial cooperation in criminal matters

in the EU.

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III. MODEL OF THE EUROPEAN PUBLIC PROSECUTOR’S OFFICE

1. Introduction

All previously analyzed models of cross-border evidence gathering in European Union criminal

law, both applied and proposed, are cooperation models.819 They are models characterized by the

cooperation of criminal justice systems of Member States. In cooperation models, the

enforcement of European Union criminal law is dependent on the law enforcement capacities of

Member States. All the models that have been presented so far also represent horizontal models

of cooperation in criminal matters. They are horizontal because they govern cooperation between

partners that stand on an equal footing, between Member States of the European Union. Besides

horizontal models of cooperation, vertical models of cooperation also exist. These models govern

cooperation between supranational bodies and national States.

European Union criminal law can be enforced not only through the cooperation of Member

States, but also through the creation of genuine European law enforcement mechanisms. Instead

of being dependant of the national law enforcement mechanisms of Member States, the European

Union can develop its own supranational law enforcement mechanisms. This idea has been

present in European Union criminal law for more than two decades. It is based on a premise that

there are certain interests of the European Union that cannot be adequately protected by the

criminal law mechanisms of Member States.820 These interests are so important for the European

Union that they can only be properly protected by a genuinely European institution. These ideas

synthesised in the proposal to establish the European Public Prosecutor. After more than two

decades of preparation, in the provisions of the Lisbon Treaty a legal basis for the establishment

of such an institution was finally based.

819 Generally about the cooperation model as a possible answer of the national criminal justice systems to the threat

of transnational criminality, see Sieber, Ulrich, Unificación, Armonización y Cooperación: a la Búsqueda de

Soluciones para los Sistemas Penales Federales y Supranacionales,in Sieber, Ulrich; Simon, Jan-Michael (Eds.),

Hacia la Unificación del Derecho Penal, INACIPE, México, 2011, p. 25-27. 820 On reasons for the distrust towards the Member States capabilities to adequately prosecute crimes that affect the

EU budget, see Ligeti, Katalin; Simonato, Michele, The European Public Prosecutor’s Office: Towards a Truly

European Prosecution Service, New Journal of European Criminal Law, 1-2 (2013), p. 8-9.

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2. European Public Prosecutor’s Office in the Lisbon Treaty

One of the biggest novelties of the Lisbon Treaty in the area of criminal law is the creation of a

legal basis in primary EU law for the establishment of the Office of the European Public

Prosecutor. Insertion of provisions which foresee the possibility for the creation of a genuine

European prosecuting authority in the founding treaties represents the crown of a long lasting

project, which started back at the end of the 20th century, with the publication of the Corpus Juris

project in 1997.821 After an updated version of the project was published in 2000,822 the

Commission welcomed proposals coming from academia and elaborated on the possibility of

establishing such an office in the Green Paper on criminal-law protection of the financial interests

of the Community and the establishment of a European Prosecutor, which was published in

2001.823 From the publication of the Green Paper onwards, the Commission had two unsuccessful

attempts at creating a legal basis for the establishment of the European Public Prosecutor in

primary EU law. At the conference held in Nice in 2001, the Commission proposed the

introduction of Article 280a in the Treaty on the European Community which foresaw the

appointment of the European Public Prosecutor with the competence to prosecute crimes against

the financial interests of the European Community. This proposal encountered a lot of opposition

from Member States who feared the loss of their competences in the area of criminal law. Due to

opposition coming from Member States, the Commission withdrew the proposal. Another attempt

to create a legal basis for the European Public Prosecutor in primary EU law came with the

Constitutional Treaty. Provisions on the establishment of the European Public Prosecutor’s

Office were contained in Article III-274 of the Constitutional Treaty. With the rejection of the

Constitutional Treaty, the idea to create an Office for the European Public Prosecutor was also

rejected. However, provisions of the Constitutional Treaty which related to the European Public

Prosecutor were overtaken in the Lisbon Treaty. With the adoption of the Lisbon Treaty, a legal

821 For the Corpus Juris project, see Delmas-Marty, Mireille (ed.), Corpus Juris – Introducing Penal Provisions for

the Purpose of the Financial Interests of the European Union, Economica, Paris, 1997. 822 The so-called Corpus Juris 2000. For this version of Corpus Juris, see Delmas-Marty, Mireille; Vervaele, John A.

E. (eds.), The Implementation of the Corpus Juris in the Member States, Intersentia, Antwerpen-Groningen-Oxford,

2000. 823 Green Paper on criminal-law protection of the financial interests of the Community and the establishment of a

European Prosecutor, 11. 12. 2001, COM (2001) 715 final. For the critical analysis of the ideas expressed in the

Green Paper, especially from the point of view of criminal procedural law, see Gaede, Karsten, Nullum judicium sine

lege, Die völkerrechtliche Bindung eines gemeinschaftsrechtlichen Sonderstrafverfahrens an das Potential der

Europäischen Konvention für Menschenrechte und Grundfreiheiten, ZStW, 4/2003, p. 845-879.

251

basis in primary EU law was finally created for the establishment of the Office of the European

Public Prosecutor.824

Provisions on the European Public Prosecutor are stated in Article 86 of the Treaty on the

Functioning of the European Union.825 Provisions of Article 86 TFEU foresee the possibility to

establish the European Public Prosecutor’s Office and there is no obligation to establish the

Office, it is only a possibility foreseen in the TFEU. If there is going to be an EPPO, it is going to

be established from Eurojust. The Office may be established by a regulation which has to be

adopted in a special legislative procedure whereby the Council must act unanimously after

obtaining the consent of the European Parliament.826 The fact that the EPPO can only be

established in the special legislative procedure, where all Member States are unanimous and the

consent of the European Parliament is required, significantly lowers the chances of its

establishment.827

In relation to substantive criminal law, the competence of the Office is limited to offences against

the Union’s financial interests.828 However, the TFEU also foresees the possibility to broaden the

material competence of the Office, in order to include also serious crime having a cross-border

dimension. This decision lies with the European Council exclusively, which needs to act

unanimously after obtaining the consent of the European Parliament and after consulting the

824 Đurđević, Zlata, Lisabonski ugovor: prekretnica u razvoju kaznenog prava u Europi, HLJKPP, 2/2008, p. 1112-

1113. For the historical development of the “European Public Prosecutor idea” see Hamran, Ladislav; Szabova, Eva,

European Public Prosecutor’s Office – Qui bono?, New Journal of European Criminal Law, 1-2/2013, p. 41-44. 825 Generally about this provision, see Zwiers, Martijn, The European Public Prosecutor’s Office, Analysis of a

Multilevel Criminal Justice System, Intersentia, 2011, p. 385-409. Heger, Martin, Perspektiven des Europäischen

Strafrechts nach dem Vertrag von Lissabon, ZIS, 8/2009, p. 416, Mitsilegas, Valsamis, EU Criminal Law, Hart

Publishing, 2009, p. 229-232, Herlin-Karnell, Ester, The Lisbon Treaty, A Critical Analysis of its Impact on EU

Criminal Law, eucrim, 2/2010, p. 62. 826 Article 86(1) TFEU. For the legislative procedure, see Zwiers, 2011, 387-388. 827 In the same sense, Heger, 2009, 416. TFEU foresees a procedure which can help to establish the unanimity in the

Council and it also foresees the possibility for Member States to establish the EPPO, in the absence of unanimity in

the Council, by using the model of enhanced cooperation. Regarding the first possibility, a group of at least nine

Member States may refer the draft regulation to the European Council, in case unanimity can not be achieved in the

Council. In that case, procedure in the Council is suspended, while further discussions are taking place in the

European Council. In case consensus is reached in the European Council (which must happen within four months

from the suspension), the European Council shall refer the draft regulation back to the Council. Regarding the second

possibility, if no consensus is reached in the European Council, at least nine Member States may pursue the adoption

of the draft regulation in the model of enhanced cooperation. If they wish to proceed in that manner, they must

inform the European Parliament, the Council and the Commission thereof. For all these possibilities, see Article

86(1) TFEU. For the analysis of this provision, see Zwiers, 2011, 387-388. 828 Article 86(2) TFEU.

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Commission.829 In relation to criminal procedure, the Office shall be responsible for

investigating, prosecuting and bringing to judgement the perpetrators of, and accomplices in,

offences which come within its material competence.830 Further questions regarding the Office,

which are not regulated by the Treaty, such as, general rules applicable to the Office, conditions

governing the performance of its functions, rules of procedure applicable to its activities,

including those governing the admissibility of evidence, shall be determined by a regulation.831

In its Communication to the European Parliament, the Council, the European Economic and

Social Committee and the Committee of the Regions, published in 2011,832 the Commission

announced its readiness to make full use of the opportunities enshrined in the Lisbon Treaty, in

order to fight crime against the financial interests of the EU.833 The Commission announced that

its activity in the file shall be oriented in three directions: strengthening criminal and

administrative procedures, strengthening substantive criminal law, and strengthening institutional

capacity. Among the last orientation, the possibility to establish the European Public Prosecutor’s

Office was considered.834

3. Proposal for a Regulation on the European Public Prosecutor’s Office

Less than four years after the Lisbon Treaty came into force, and two years after the

Communication was published, the Commission came out with a Proposal for a Regulation on

the establishment of the European Public Prosecutor’s Office835 in July 2013. Pursuant to the

829 Article 86(4) TFEU. For the (basic and expanded) substantive jurisdiction of the EPPO pursuant to the Lisbon

Treaty, see Zwiers, 2011, 388-393, Sicurella, Rosaria, Setting up a European Criminal Policy for the Protection of

EU Financial Interests: Guidelines for a Coherent Definition of the Material Scope of the European Public

Prosecutor’s Office, in Ligeti, Katalin (Ed.), Toward a Prosecutor for the European Union, Volume 1, A

Comparative Analysis, Hart Publishing, Oxford and Portland, Oregon, 2013, p. 870-904. 830 Article 86(2) TFEU. For the competences of the EPPO pursuant to the Lisbon Treaty, see Zwiers, 2011, 396-405. 831 Article 86(3) TFEU. 832 Communication from the Commission to the European Parliament, the Council, the European Economic and

Social Committee and the Committee of the Regions on the Protection of the Financial Interests of the European

Union by Criminal Law and by Administrative Investigations, An Integrated Policy to Safeguard Taxpayers' Money,

Brussels, 26.5.2011, COM(2011) 293 final. 833Ibid., p. 12. 834Ibid., p. 11. 835 Proposal for a Council Regulation on the Establishment of the European Public Prosecutor’s Office, Brussels,

17.7.2013, COM(2013) 534 final.

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Proposal, the EPPO is established as a body of the Union with a legal personality.836 Its structure

is decentralised837 and it comprises a European Public Prosecutor, their Deputies, as well as

European Delegated Prosecutors located in the Member States.838 A European Public Prosecutor

heads the Office, directs its activities and organizes its work and while exercising their duties,

they will be assisted by four Deputies.839 The investigations and prosecutions of the EPPO shall

be conducted by the European Delegated Prosecutors under the direction and supervision of the

European Public Prosecutor.840 Each Member State shall have at least one European Delegated

Prosecutor, who are an integral part of the EPPO and act under the exclusive authority of the

European Public Prosecutor and follow their instructions, guidelines and decisions when they

carry out investigations and prosecutions assigned to them. When they act as a part of the EPPO,

they are fully independent from national prosecution bodies and have no obligations with regards

to them.841

Regarding its material competence, the Proposal determines that the EPPO shall have exclusive

competence in respect of criminal offences affecting the financial interests of the Union.842 The

offences which can be categorized as offences against the financial interests of the Union are to

be defined in the Directive on the fight against fraud in the Union’s financial interests by means

of criminal law. In July 2012, the Commission came out with a Proposal for the adoption of such

836 Article 3(1) and (2) of the Proposal. 837 Critically on the use of the term „decentralised“, see Ligeti/Simonato, 2013, 13 (footnote 21). The authors

consider the term „decentralised“ to be misleading, because it is not clear whether it relates to the structure of the

EPPO or its powers. In stead of the terms „centralised“ and „decentralised“ they plead for the use of a threefold

distinction, which differentiates between a „college“, a „centralised“ , and an „integrated“ model of the EPPO. 838 Article 6(1) of the Proposal. 839 Article 6(2) of the Proposal. 840 Article 6(4) of the Proposal. 841 Article 6(5) of the Proposal. European Delegated Prosecutors may continue to exercise their functions as national

prosecutors, but in the event of conflicting assignments, the interest of investigations and prosecutions of the EPPO

is given priority, see Article 6(6) of the Proposal. The model which was foreseen in the Proposal follows the idea

contained in the Corpus Juris. Following the classification offered by Ligeti/Simonato, the approach offered

corresponds the characteristics of an “integrated model” for the EPPO. Main characteristic of this model is that the

European Delegated Prosecutors act with a “double hat” – they become a part of the EPPO, at the same time

maintaining their status in the national criminal justice system of the respective Member State. For the advantages

and disadvantages of such a structure for the EPPO, see Ligeti/Simonato, 2013, 15-17. 842 Article 11(4) of the Proposal. The competences of the EPPO are not attached to the transnational dimension of the

case. EPPO has exclusive competence for all offences against the EU budget, even when the crime has a national

dimension only. See Ligeti/Simonato, 2013, 11.

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a Directive843 with the latter Proposal foreseeing two groups of offences against the financial

interests of the Union: fraud844 and fraud related criminal offences.845

The EPPO has exclusive competence to investigate and prosecute offences against the Union’s

financial interests. The investigation is led by the European Delegated Prosecutor who acts on

behalf and under the instructions of the European Public Prosecutor. The designated European

Delegated Prosecutor may either undertake the investigation measures on their own or instruct

the competent law enforcement authorities in the Member State where they are located. National

law enforcement authorities of Member States are obliged to comply with the instructions of the

European Delegated Prosecutor and to execute the investigation measure assigned to them.846 If

the case involves a cross-border dimension, and an investigation measure needs to be executed in

a Member State other than the one where the investigation was initiated, the measure is

undertaken by the European Delegated Prosecutor of that State or by national authorities of that

State upon an instruction of the European Delegated Prosecutor. The European Delegated

Prosecutor of the Member State where the investigation measure needs to be undertaken acts in

close consultation with the European Delegated Prosecutor of the Member State where the

investigation was initiated.847

The concept of the EPPO is based on the idea of European territoriality, for the purposes of

investigations and prosecutions conducted by the EPPO the territory of the Union’s Member

States shall be considered a single legal area in which the EPPO may exercise its competence.848

The Proposal brings a list of investigative measures which the EPPO shall have the power to

request or to order. The list includes, among other measures: search of any premises, interception

of telecommunications, monitoring of financial transactions, undertaking of covert investigations,

summoning and questioning of suspected persons and witnesses, and appointment of experts.849

When it comes to investigative measures which are explicitly mentioned in the Proposal, Member

843 Proposal for a Directive of the European Parliament and of the Council on the fight against fraud to the Union’s

financial interests by means of criminal law, 11 July 2012 COM (2012) 363 final. 844 Article 3 of the Proposal for a Directive. 845 Article 4 of the Proposal for a Directive. 846 Article 18(1) of the Proposal. 847 Article 18(2) of the Proposal. 848 Article 25(1) of the Proposal. 849 Article 26(1) of the Proposal.

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States are obliged to ensure that those measures may be used in investigations and prosecutions

conducted by the EPPO. Investigative measures which are not explicitly mentioned in the

Proposal may only be ordered or requested by the EPPO if available under the law of the Member

State where the measure is to be carried out.850 The Proposal also provides for the judicial

authorisation of intrusive investigative measures ordered or requested by the EPPO. Such

measures are to be authorized by the competent judicial authority of the Member State where

they are to be carried out.851 When authorizing a measure, the judicial authority of the Member

State acts in accordance with the conditions prescribed by the Regulation, as well as the

conditions prescribed by the national law of the Member State where the measure is to be carried

out.852

The offences for which the EPPO is competent are prosecuted before the national courts of

Member States.853 The competent national court before which the indictment is going to be

submitted and trial is going to take place is determined by the European Public Prosecutor. When

making such a decision, the European Public Prosecutor needs to take the following criteria into

account: the place where the offence was committed, the place where the accused person resides,

the place where the evidence is located, and the place where the direct victims reside.854

Regarding the evidence collected by the EPPO during the investigation, the Proposal introduces a

rule on the admissibility of such evidence before the court of the Member State where the trial is

taking place. Evidence collected by the EPPO shall be admitted in the trial without any validation

or similar legal process, even if the national law of the Member State where the court is located

provides for different rules on the collection or presentation of such evidence.855 However,

850 Article 26(2) of the Proposal. 851 Article 26(4) of the Proposal. 852 Article 26(6) of the Proposal. On judicial control of the EPPO’s investigative activities, see Đurđević, Zlata,

Judicial Control in Pre-Trial Criminal Procedure Conducted by the European Public Prosecutor’s Office, in Ligeti,

Katalin (ed.), Toward a Prosecutor for the European Union, Volume 1: A Comparative Analysis, Hart Publishing,

Oxford and Portland, Oregon, 2013, p. 986-1010. 853 Article 27(1) of the Proposal. 854 Article 27(4) of the Proposal. 855 Rule on mutual admissibility of evidence was also proposed in the Corpus Juris and in the Green Paper. The

concept, upon its appearance, entcountered a lot of criticism and open opposition, espacially from the rights of

defence point of view. For the critiques, see Gle, 2004, 364-366. The years following the Corpus Juris and the

Green Paper, however, showed that, despite the criticism, the Commission did not give up on the concept and

reintroduced it in its Green Paper on Obtaining Evidence from One Member State to Another and Securing its

Admissibility (COM (2009) 624 final, 11. 11. 2009). Reappearance of the concept raised an avalanche of criticism –

see contributions published in the special issue of Zeitschrift für Internationale Strafrechtsdogmatik, 9 (2010). All

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evidence collected by the EPPO shall not be admissible where the trial court considers that its

admission would adversely affect the fairness of the procedure or the rights of defence as

enshrined by the Charter of Fundamental Rights of the European Union.856 Despite the rule on

the mandatory admission of evidence collected by the EPPO, the right of the trial court to

evaluate its probative value remains unaffected, a national court remains free to assess freely the

evidence presented by the EPPO.857

4. Cross-border Gathering of Evidence pursuant to the European Public Prosecutor’s

Office Model

In this model, where the creation of a supranational prosecution authority is foreseen, we cannot

talk about the cross-border gathering of evidence in the same sense we talked about it before. In

the previously analysed models, we studied cooperation between the Member States of the EU, or

between their judicial authorities. In this model national prosecution authorities make way for the

supranational prosecution authority that is competent to act on the entire territory of the European

Union. However, although a supranational prosecution authority is created, the

supranationalisation of criminal justice systems has not been conducted all the way. The

provisions of the Directive on the fight against fraud in the Union’s financial interests are

conducted by means of criminal law. This will need to be implemented by Member States and

transposed into national substantive criminal law provisions; also the harmonization of national

substantive criminal laws into the area of criminal offences against the financial interests of the

Union shall need to be conducted. However, these harmonized provisions shall still be the

provisions of the national legal order of the Member States,858 with the same being even more so

for criminal procedural law. In the area of criminal procedural law, the Proposal for a Regulation

this development did not bring an end to the idea, which reappeared in the Proposal for the Establishment of the

EPPO. Critically about the mutual admissibility of evidence gathered by the EPPO, especially witness-statements,

see Đurđević, 2013, 999-1001. 856 Article 30(1) of the Proposal. 857 Article 30(2) of the Proposal. 858 Meijers Committee on the proposed Council Regulation on the establishment of the European Public Prosecutor's

Office, 25 September 2013, available at:

http://eppo-

project.eu/design/eppodesign/pdf/converted/index.html?url=f97b4056e17f5326bdb6ef3a0293bcf0.pdf&search=

(6 October 2014), p. 2.

http://eppo-project.eu/design/eppodesign/pdf/converted/index.html?url=f97b4056e17f5326bdb6ef3a0293bcf0.pdf&search


257

only foresees the obligation of Member States to have certain investigative measures, the ones

that the European Public Prosecutor must be able to request or order, regulated in their national

criminal procedural orders. However, the Proposal for a Regulation does not set any common

standards for national criminal procedural rules, which means that Member States are free in this

regard. To conclude, even though the creation of the European Public Prosecutor’s Office

represents the establishment of a supranational prosecution authority, it does not represent the

creation of a unified supranational legal order. Both, substantive and procedural criminal law

remains regulated by the provisions of the national criminal law of Member States. This is

especially visible in the area of criminal procedural law, where no common standards for

investigative measures are created. Full supranationalisation of the criminal justice system859

would also require the establishment of the European Criminal Court, which would be competent

to try the cases the European Public Prosecutor is competent for. The Proposal for a Regulation

does not foresee the creation of such a court, however, this is not due to the unwillingness of the

drafters of the Proposal to have the European Criminal Court established, but due to the absence

of the legal basis for such an institution in primary EU law.860 In a fully supranationalised model,

there would be no need to talk about cross-border evidence gathering, because the whole system

would be characterised by the supranational judicial and law enforcement authorities, and unified

supranational substantive and procedural criminal law. In the model of the European Public

Prosecutor’s Office, only a small part of the criminal justice system is supranationalised, a

supranational prosecution authority is established. However, substantive and procedural criminal

laws remain to a high degree national, and so do other criminal justice actors. Due to the

European Public Prosecutor needing to make use of different criminal procedural orders of

different Member States in order to investigate a case which includes a cross-border dimension,

talking about cross-border gathering of evidence still makes sense.

Provisions of the Proposal for a Regulation contain a couple of references to cross-border

situations and to the questions related to evidence in criminal matters. The most important

characteristics of these rules are the following three: (1.) European territoriality in ordering the

859 For the supranational model of EU criminal law and the various possible degrees in its development, see Sieber,

2009, 22-23, 44 and further. 860 Article 86 TFEU requires that adjudication of cases prosecuted by the EPPO remains on national level, see

Ligeti/Simonato, 2013, 14.

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investigative measures, (2.) limitations arising out of national criminal procedural laws, and (3.)

mutual admissibility of evidence.

4. 1. European territoriality in ordering the investigative measures

The European Public Prosecutor can order or request the undertaking of the investigative

measures on the whole territory of the European Union. The investigative measures which the

European Public Prosecutor may order or request can be divided into two groups: the

investigative measures which must be available under the law of Member States, and

investigative measures which must not be mandatory and available under the law of the Member

States. A list of investigative measures which must be available under the law of the Member

States is given in Article 26(1) of the Proposal for a Regulation.861

4. 2. Limitations arising out of national criminal procedural laws

Although the European Public Prosecutor can order or request investigative measures on the

whole territory of the EU, this does not mean that the conditions for the undertaking of the

investigative measures are not made dependent upon the conditions foreseen in the national

criminal procedural laws of Member States. In relation to the investigative measures which must

be available under the national law of Member States, the Proposal for a Directive prescribes that

these measures are subjected to the conditions set out in the national law of the Member State in

whose territory the measure is undertaken.862 The decision on the compatibility with the

conditions of national law lies with the judicial authority of the Member State where the

investigative measures are to be carried out.863 In relation to investigative measures that must not

be mandatory and available under the law of the Member States, the Proposal for a Directive

prescribes that they may only be ordered or requested by the European Public Prosecutor if

available under the law of the Member State where the measure is to be carried out.864

861 See supra D. III. 3. 862 Article 26(2) of the Proposal. 863 Article 26 (4) and (5) of the Proposal. 864 Article 26 (2) of the Proposal.

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To conclude – although the EPPO can order or request that the investigative measures be

undertaken on the whole territory of the EU, the possibility to have the investigative measures

executed largely depends upon the conditions prescribed by national law of Member States.

Although the EPPO acts on the whole territory of the EU, his/her activity is legally deeply rooted

into the national legal systems of Member States.865

The Proposal, therefore, did not accept the approach which was developed in the research project

which was conducted by the University of Luxembourg, under the leadership of Ligeti.866 The

project resulted in a system of procedural rules which define the status and the powers of the

EPPO and its relations with the national criminal justice system.867 They are divided into three

parts: the general part, the investigation phase, and the prosecution phase which is bringing to

judgment.868 The starting premise of the project is that the EPPO, if it is to become a genuinely

European prosecution authority established in accordance with the objectives of an Area of

Freedom, Security and Justice, needs to be equipped with a “set of powers uniformly formulated

and valid in all Member States participating”.869 The elaboration and acceptance of such rules

would enable the EPPO to undertake European investigations emancipated from the difficulties

which arise out of the differences between the national legal orders of Member States.870 The fact

that the Proposal for a Regulation did not follow this approach, but accepted a much more modest

one where the investigative and prosecutorial activities of the EPPO are not based on a uniform

supranational set of rules, but are rooted in the specificities of the national legal orders of

Member States, shows that the Commission was well aware of the need to safeguard Member

States national sovereignty and cultural identity in the area of criminal procedural law.

865 Meijers Committee on the proposed Council Regulation on the establishment of the European Public Prosecutor's

Office, 25 September 2013, available at:

http://eppo-

project.eu/design/eppodesign/pdf/converted/index.html?url=f97b4056e17f5326bdb6ef3a0293bcf0.pdf&search=

(6 October 2014), p. 5. 866 The results of the research project named European model rules for the procedure of the future EPPO are

available at the following website: www.eppo-project.eu About the work of the research group, see Đurđevć, Zlata;

Ivičević Karas, Elizabeta; Burić, Zoran, Konferencija Projekt za Ured europskog javnog tužitelja (Nacrt europskih

oglednih pravila o kaznenom postupku), HLJKPP, 1(2012), p. 363-369. 867 Ligeti, Katalin, Introduction to the Model Rules, available at the project web page, p. 2. 868Ibid, 4. 869 Ligeti/Simonato, 2013, 7. 870Ibid, 18-20.



http://www.eppo-project.eu/

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4. 3. Mutual admissibility of evidence

As explained above, although the EPPO is competent to conduct investigations on the whole

territory of the EU, depending on the case, they might need to rely on the criminal procedural

rules of different Member States. If the case in the hands of the EPPO includes a cross-border

dimension and investigative measures need to be undertaken on the territory of different Member

States, the admissibility of the measures, as well as the form of their execution are determined by

the law of the Member State on the territory of which the investigative measure is undertaken.

This might mean that the evidence collected during the investigation, which the EPPO plans to

use in order to submit the indictment, might originate from different criminal procedural orders.

When a case is being transferred from the investigation to the indictment and trial phase, the

competence of the court which is going to try the case has to be determined. It is highly possible

that evidence which will be presented before this court is not gathered in accordance with the

criminal procedural rules of the Member State where the court is situated. This might raise the

question of the admissibility of evidence, however, the Proposal for the Regulation resolves this

issue by prescribing a mandatory mutual admissibility of evidence. Evidence collected by the

EPPO, which might originate from the criminal procedural orders of different Member States,

shall be admitted in the trial without any validation or similar legal process even if the national

law of the Member State where the court is located provides for different rules on the collection

or presentation of such evidence.871 Such evidence might not be admitted by the trial court only

where the court considers that its admission would adversely affect the fairness of the procedure

or the rights of the defence as enshrined in the Charter of Fundamental Rights of the EU.872 The

mutual admissibility of evidence in the Proposal means that the evidence must be admitted at the

trial, it cannot be excluded solely on the fact that it has been gathered following different criminal

871 Article 30(1) of the Proposal. See Đurđević, 2013, 997. 872 Article 30(1) of the Proposal. Proposal explicitly mentions Articles 47 and 48 of the Charter. Article 47 of the

Charter guarantees the right to an effective remedy and to a fair trial, and Article 48 guarantees presumption of

innocence and right of defence. This provision does not explicitly mention the European Convention for the

Protection of Human Rights and Fundamental Freedoms, or the jurisprudence of the European Court for Human

Rights. However, since the Charter explicitly refers to the Convention in order to determine the scope of rights

guaranteed by the Charter which correspond to the right guaranteed by the Convention, that is not a problem. On the

issue of mutual admissibility of evidence from the point of view of the European Convention for Human Rights and

the jurisprudence of the Strasbourg Court, see Đurđević, 2013, 999-1001.

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procedural rules, but it does not exclude the right of the trial court to freely assess the admitted

evidence.873


In order to solve the problems which arise out of the inadequate level of criminal law protection

by Member States of legal interests which are of the utmost importance to the EU, a model of

European criminal justice has been created where elements of law enforcement are shifted from

the national to the supranational level. The model of the European Public Prosecutor’s Office

proposes the creation of a supranational procedural authority which is going to have exclusive

competence for offences against the Union’s financial interests on the entire territory of the EU.

The competence of the EPPO is not dependant on the national or transnational character of the

underlying offence.

In order to enable the EPPO to undertake the investigative acts in all the Member States of the

EU, the concept is based on the idea of European territoriality. This means that the EPPO can act

on the entire territory of the EU. National borders which impede national prosecution authorities

from undertaking activities on the territory of other Member States are shifted when it comes to

the activities of the EPPO. This means that the cross-border gathering of evidence in the

traditional sense, as an activity involving judicial authorities between different States, is not

applicable here. However, with the EPPO model, supranationalisation has been effectuated only

on the organisational level, and only in relation to prosecutorial activities. Other law enforcement

activities, indictments and the trial phase of a criminal procedure remain national as well as

criminal laws remaining national, especially criminal procedural laws. Although the EPPO can

undertake its investigative activities in all Member States, when undertaking them they are not

governed by a supranational criminal procedural order, but by national law of Member States.

Since the EPPO can undertake their activities on the whole territory of the EU, criminal

procedural laws of all Member States, as a framework for their activities, has to be taken into

account.

873 Article 30(2) of the Proposal.

262

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Chapter VI. CONCLUSION

The Conclusion is composed of two main parts, in the first part, a summary of the results of the

normative analysis of the mutual legal assistance and the mutual recognition model is given.

Results of the normative analysis are presented in a way which enables the comparison of the

main features of these models of cross-border evidence gathering. After the comparison of the

models is given in the first part of the Conclusion, its second part brings a final evaluation of the

models. Based on the analysis undertaken in the research and on the findings brought forward in

the first, comparative, part of the Conclusion, a final evaluation of the models is given with an

assessment of their appropriateness to serve as the basis for the foundation of EU judicial

cooperation in the area of evidence.

I. RESULTS OF THE NORMATIVE ANALYSIS – COMPARISON OF THE

MODELS

In the central part of the work normative analysis of the mutual legal assistance and the mutual

recognition models of cross-border evidence gathering in EU criminal law was undertaken. When

undertaking the analysis, the models were looked at from three different perspectives: the

perspective of the requesting/issuing State, the perspective of the requested/executing State, and

the perspective of the individual. When results of the analysis are brought together and presented

in a comparative sequence, they show the following findings.

1. Position of the requesting/issuing State

The requesting/issuing State is the State where the criminal procedure in relation to an offence

with a transnational dimension is taking place. It is a State which, in order to bring the criminal

procedure to a successful end, needs to gather the evidence which is located on the territory of

another State. In the context of EU criminal law, the requesting/issuing State is not only pursuing

its own interests in the sphere of crime prosecution, it is also taking responsibility for the

successful prosecution of transnational crime. The extent to which the interests of the

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requesting/issuing State are taken into account in the context of cross-border evidence gathering,

therefore indicate the extent to which different models of cross-border evidence gathering create

an adequate framework for the successful prosecution of transnational crime. In other words, it

indicates the extent to which different models create a foundation for a transnationally effective

criminal law in the area of evidence.

When requesting assistance from another Member State, or when ordering the undertaking of an

investigative measure on the territory of another Member State, the requesting/issuing State has

two main interests: to gather the evidence abroad and to be able to use the evidence gathered

abroad in the domestic criminal procedure.

In relation to the first point of interest, elements of two different models were analysed: how

broad the possibilities are for the requesting/issuing State to request/order the gathering of

evidence abroad, and how high is the certainty that the requested/ordered measure will be

executed on the territory of the requested/executing State.

In relation to the first element, broadness of possibilities to request/order the gathering of

evidence abroad, the following issues were analysed: procedures in relation to which assistance

may be requested/ordered, evidence gathering actions that may be the object of the request/order,

authorities competent to issue a request/order, conditions for issuing a request/order, and

transmission of the request/order. In relation to these issues, the results of the normative and

comparative analysis of the models show the following findings:

- in the mutual legal assistance model the requesting State has broad possibilities to request

the gathering of evidence in another Member State, both with regards to national

proceedings in relation to which assistance may be requested (not only criminal

proceedings, but also proceedings in relation to offences under administrative penal law;

in relation to latter both administrative and judicial part of the proceedings), and in

relation to evidence gathering actions that may be requested (not only evidence gathering

actions that are explicitly regulated in mutual legal assistance instruments, but all other

evidence gathering actions). The possibilities to request the gathering of evidence abroad

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are not limited by the scope of national competent authorities which may request the

gathering of evidence abroad (mutual legal assistance instruments do not try to establish

equivalence between the competent judicial authorities of the requesting and the requested

State), or by prescribing the conditions which have to be fulfilled in order to issue a

request for assistance, or by the involvement of political authorities in the process of

issuing a request for assistance (mutual legal assistance instruments allow for direct

contact/transmission of the request for assistance between the competent judicial

authorities of the requesting and the requested State);

- in the mutual recognition model, with the provisions of the Directive EIO, the issuing

State has also got broad possibilities to order the gathering of evidence abroad, both with

regards to proceedings in relation to which an EIO may be issued, as well as in relation to

evidence gathering actions that may be the object of an order. An order may be issued in

relation to proceedings for criminal offences and in relation to proceedings for offences

under administrative penal law (both in the administrative and in the judicial part of the

proceedings). Any evidence gathering action (investigative measure) may be the object of

an order, except the measures which are explicitly excluded from the scope of application

of the EIO (joint investigation teams and cross-border surveillance). Although mutual

recognition instruments try to establish equivalence between the competent judicial

authorities of the cooperating States, by giving a definition of the authorities which are

competent to issue a warrant/order, the scope of authorities is very broad and it does not

significantly affect the possibilities of the issuing State to order the gathering of evidence

abroad. The mutual recognition model attaches the possibility to order the gathering of

evidence abroad with the conditions which have to be fulfilled and which are evaluated

either by the law of the issuing State (availability) or by the transnational context in which

the order is issued (necessity and proportionality). In the mutual recognition model of

cooperation, cooperation procedure is realised on the level of competent judicial

authorities of cooperating States, which means that the scope of cooperation is not

affected by the considerations which arise out of the involvement of political authorities

into the process.

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In relation to the second element, certainty that the requested/ordered measure shall be executed

on the territory of the requested/executing Member States, the clarity of legal provisions and the

stringency of the obligation of the requested/executing Member State to undertake the evidence

gathering action requested/ordered are of primary importance. In relation to the clarity of their

legal provisions and the stringency of obligations prescribed therein, the following was concluded

in relation to the analysed models:

- the mutual legal assistance model is characterised by the flexibility of its legal provisions

and by the absence of any stringent obligation on the side of the requested State to

provide the assistance requested;

- One of the main characteristics of the mutual recognition model, when compared to the

mutual legal assistance model, is the enhanced stringency of cooperation. Legal

instruments which introduced the principle of mutual recognition in the area of evidence

brought clearer and more predictable rules which raise the certainty at the side of the

requesting/issuing State that the evidence gathering action requested/ordered shall be

executed on the territory of the requested/executing State.

The other interest of the requesting/issuing State is the ability to use the evidence gathered

abroad in the domestic criminal procedure of that State, in other words, the admissibility of the

evidence gathered abroad in the domestic criminal procedure. Only if the evidence gathered

abroad is admissible in the criminal procedure of the requesting/issuing State, is the purpose of

cross-border evidence gathering fulfilled and the foundations for the establishment of a

transnationally effective criminal law are laid. Neither of the models systematically resolves the

issues of the admissibility of evidence gathered abroad in the domestic procedure of the

requesting/issuing State, but both of them have rules the purpose of which is to raise the

probability that the evidence gathered abroad will be admissible in the criminal procedure of the

requesting/issuing State. In relation to the question of the admissibility of evidence, the way in

which the evidence gathering action requested/ordered is executed was analysed, through the

assessment of the following issues: a decision on the evidence gathering action to be undertaken,

a law which regulates the gathering of evidence, officials who undertake the action, and time-

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limits for the execution of the request/order. The analysis of the aforementioned issues brought

the following conclusions:

- in the mutual legal assistance model the decision on the evidence gathering action which

is going to be undertaken on the territory of the requested State is made by the requesting

State, which, taking into account the fact that admissibility of evidence is dependent on

the way in which the evidence is gathered, raises the probability that the gathered

evidence will be admissible in the criminal procedure of the requesting State.

Furthermore, although the general rule is that the evidence gathering action requested will

be executed in accordance with the law of the requested State (locus regit actum), mutual

legal assistance instruments explicitly allow limited applicability of the forum regit actum

principle, the requesting State may indicate formalities and procedures of its law which

need to be followed in the execution of a request for assistance, and the requested State

shall act in accordance with those formalities and procedures, unless they are contrary to

the fundamental principles of its law. Limited applicability of the forum regit actum

principle also raises the probability that the evidence collected abroad will be admissible

in the criminal procedure of the requesting State. Rules which determine the possibility

for the officials of the requesting State to participate in the execution of a letter rogatory

in the requested State serve the same purpose. This possibility is made dependent upon

the consent of the requested State and the practical value of the evidence gathered abroad

may be dependent on the swift execution of a letter rogatory. Mutual legal assistance

instruments do not provide specific deadlines for the execution of a request for assistance,

but encourage the requested State to take as full account as possible of the deadlines

indicated by the requesting State;

- pursuant to the mutual recognition logic, the decision on the evidence gathering action

that is going to be undertaken on the territory of the executing State should be made by

the judicial authorities of the issuing State. Since the mutual recognition model is

characterized by a shift from requesting to ordering evidence gathering actions on the

territory of another Member State, this means that the competent judicial authorities of the

issuing State would have the power to order the undertaking of the evidence gathering

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action on the territory of the executing State. However, current mutual recognition

instruments have not fully implemented this mutual recognition logic. European Evidence

Warrant openly abandoned it by introducing the concept by which the competent judicial

authorities of the issuing State do not decide about the evidence gathering action that is

going to be undertaken on the territory of the executing State, but about the piece of

evidence which is going to be collected there. The European Investigation Order

reintroduced the orientation towards the evidence-gathering action, but mitigated it with

opening the possibility for the competent judicial authorities of the executing State to

have recourse to a different kind of investigative measure. If the competent judicial

authorities of the executing State use this possibility, it lowers the possibility for the

evidence collected in the executing State to be admissible in the criminal procedure of the

issuing State. With regards to the way in which the evidence gathering action ordered is

executed, the approach is the same as in the mutual legal assistance model: a combination

of lex loci and lex fori principles, with the applicability of the law of the issuing State

being limited by the fundamental principles of law of the executing State. Unlike in the

mutual legal assistance model, where the presence of the officials of the requesting State

during the execution of the evidence gathering action in the executing State is only a

possibility dependant on the consent of the executing State, in the mutual recognition

model the executing State is obliged to allow such presence, unless it is contrary to the

fundamental principles of law of its State. The mutual recognition model is also

characterized by the prescription of short deadlines within which a warrant/order needs to

be executed, which is also beneficial for the practical use of gathered evidence in the

criminal procedure of the issuing State.

2. Position of the requested/executing State

The requested/executing State is the State on the territory of which the evidence needed for the

criminal procedure which is taking place in the requesting/issuing State is located. In the

framework of EU criminal law, the requested/executing State undoubtedly shares an interest in

the effective prosecution of transnational crime. However, since the creation of EU criminal law

did not bring an end to the existence of peculiarities of national (criminal) legal orders of

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Member States, the requested/executing State also has an interest in safeguarding the specificities

of its legal order, when it encounters decisions arising from the legal order of another Member

States, whose organizational, substantive and procedural criminal laws are different. At the

current stage of development of EU criminal law, the appropriate model of cross-border evidence

gathering is the one which will, on the one hand, enable the effective prosecution of transnational

crime, but, on the other hand simultaneously creating a framework where the specificities of

national legal orders of Member States, materialized through the fundamental principles of their

(criminal) law, can be upheld. The extent to which the mutual legal assistance and the mutual

recognition model of cross-border evidence gathering take into account this interest of the

requested/executing State was analysed through the assessment of grounds for refusal of

cooperation which are foreseen in the respective mutual legal assistance and mutual recognition

legal instruments. The normative analysis brought the following findings which are presented in a

comparative sequence:

- the mutual legal assistance model of cooperation is characterized by the existence of a

small number of very broadly defined grounds for refusal of cooperation. The grounds for

refusal of cooperation exist in the mutual legal assistance model referring to sovereignty,

security, ordre public and other essential interests of the requested State, as well as to

double criminality and the availability of the evidence gathering action requested under

the law of the requested State. Although the number of grounds for refusal are small, their

broadness enables the requested State to adapt cooperation requests to the demands which

arise out of its legal order.

- the initial intention of the mutual recognition model was to significantly reduce the

number of grounds for refusal of cooperation in the area of cross-border evidence

gathering. However, the creation of a more stringent form of cooperation in the area of

national criminal laws which were not harmonized, led to the need to introduce a larger

number of grounds for refusal than those that exist in the mutual legal assistance model.

However, the grounds for refusal in the mutual recognition model are narrowly defined

and their number is limited, which creates a more certain situation for both cooperating

States. The issuing State is certain about the number and definition of circumstances

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under which its warrant/order will not be executed in the territory of the executing State,

and the executing State is certain about the circumstances under which demands of

cooperation can be adapted to the needs which arise out of its (criminal) legal order.


The analysis of the position of the individual in the cross-border evidence gathering procedure

was divided into two parts. Namely, cross-border evidence gathering affects the position of the

individuals from both sides of the border, it affects the individual who is facing a criminal charge

in the requesting/issuing State, as well as the individual who is the object of the evidence-

gathering measure in the requested/executing State. Both of these individuals have their specific

interests in the process of cross-border evidence gathering. The individual who is facing a

criminal charge in the issuing State has a vested interest in seeing that his position is not affected

when the case involves evidence which is situated abroad. In other words, the accused and his

defence in the criminal procedure of the issuing State have an interest in seeing that their

position, defence rights and their possibilities to affect the outcome of the case are not reduced

when the case involves a transnational dimension. However, specific interests in the process of

cross-border evidence gathering are also attached to the individual who is the object of the

evidence gathering action in the requested/executing State. Since substantive and procedural

criminal laws of cooperating States are different, this individual has an interest in seeing that, in a

situation when they are subjected to an evidence gathering action requested/ordered by another

State, his/her fundamental rights are not restricted to an extent higher than the one applicable in a

case which only has a national dimension. In other words, they have an interest in seeing that

their fundamental rights guarantees are upheld.

In relation to the position of the accused and his/her defence in the criminal procedure of the

requesting/issuing State, the following questions were the object of normative analysis: do they

have the possibility to initiate the gathering of the evidence abroad, and do they have the

possibility to participate in the evidence gathering process which is taking place in another

Member State? The analysis showed the following results:

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- the mutual legal assistance model does not guarantee any specific rights for the defence in

the process of cross-border evidence gathering as the possibility for the defence to initiate

the gathering of evidence abroad is not mentioned at all. Mutual legal assistance

instruments do not contain provisions which would guarantee the defence the right to

participate in the gathering of evidence abroad. However, they do contain provisions

which foresee the possibility for the defence to participate in the gathering of evidence

abroad;

- the development of the mutual recognition model brought increased attention for the

interests of the defence in the framework of judicial cooperation in criminal matters. This

is a natural consequence of the fact that the mutual recognition model brings better

perspectives for the transnational enforcement of national criminal laws, which needs to

be counter-balanced by the improved position of the defence in the framework of judicial

cooperation proceedings. Clear and predictable rules, instead of broad, flexible and

unpredictable rules, which are characteristic for the mutual recognition model, also offer a

better perspective for the protection of the interests of the defence in transnational

criminal proceedings. The development of these rules in the direction of the recognition

of specific rights of the defence in the cross-border evidence gathering procedure is

advancing slowly, but an improvement in relation to the mutual legal assistance regime is

visible. Observance of the rights of the defence in the framework of cross-border evidence

gathering in the mutual recognition model is visible not only through the explicit

obligation of the cooperation States to take the interests of the defence into account, but

also through the recognition of specific rights for the defence, the right to initiate the

proceedings for cross-border evidence gathering and the right to make use of legal

remedies in the process.

With regards to the position of the individual who is the object of the evidence gathering measure

in the requested/executing State, the extent to which respective judicial cooperation instruments

take into account the interests of the individual affected was analysed. The normative analysis

showed the following findings:

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- mutual legal assistance instruments contain no provisions which would enable direct

protection of the individual affected by the evidence-gathering action undertaken in the

requested State. Protection of rights of the individual affected is left to cooperating States,

in this case the requested State, by giving it the possibility to make use of one of

fundamental rights oriented grounds for refusal of cooperation;

- mutual recognition instruments provide for mechanisms which enable both, indirect and

direct protection of the individual affected by the evidence gathering measure which is

undertaken in the executing State. Indirect protection is guaranteed through the

observance of the interests of the individual affected in the decision making process of the

competent judicial authorities of the issuing and the executing State, and direct protection

is guaranteed through the prescription of a right to make use of legal remedies.

II. WHICH MODEL FOR THE FUTURE OF EU CRIMINAL LAW

The starting premise of this work was that the EU needs a model of cross-border evidence

gathering that will take into account the interests of all interested actors in the process of cross-

border evidence gathering in the EU: the interests of the Member States, the interests of the

individual concerned, and the interests of the European Union. By taking into account the

position of all the involved actors and their interests, such a model of cross-border evidence

gathering would at the same time enable the achievement of three equally important objectives:

the effectiveness of prosecution of transnational crime, the guarantee of fundamental rights of the

individual, and the safeguarding of the coherence of the internal criminal law systems of Member

States. The currently applied models of cross-border evidence gathering in the EU, mutual legal

assistance and mutual recognition model, were analysed in order to evaluate the extent to which

they enable the achievement of these objectives.

The analysis of the mutual legal assistance model showed that it is a model which is strongly

oriented towards the protection of national security and other essential interests of cooperating

States, including the coherence of their criminal legal orders. This model, which is based on the

principles of traditional judicial cooperation in criminal matters, is characterised by the

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importance of political considerations, absence of strict obligations in international cooperation,

and by the existence of flexible rules that enable the cooperating States to adapt the needs of

cooperation to the demands which arise out of their national legal orders. These characteristics of

the mutual legal assistance model, which were detected through the analysis of the provisions of

the international legal instruments which govern judicial cooperation in criminal matters in

Europe, are welcomed from the point of view of safeguarding the coherence of the national

criminal legal orders of cooperating States, do not provide a adequate legal framework for the

effective prosecution of transnational crime. Flexibility of cooperation, characterized by the

absence of strict obligations in relation to cross-border evidence gathering, does not guarantee

any security that the requested cooperation will be granted or that its results will be admissible in

the criminal procedure of the Member State which took the responsibility for the prosecution of

transnational crime, the requesting State. The mutual legal assistance model is flawed not only in

relation to the effectiveness of prosecution of transnational crime; it also shows weaknesses in

relation to the position of the individual in cross-border evidence gathering. Although the

individual, originally being conceived of as its object, gradually became the subject of judicial

cooperation in criminal matters, he/she is still not given a position which would enable him/her to

effectively represent his/her interests in the process of cross-border evidence gathering. This is

seen both in the position of the accused and his/her defence in the criminal procedure of the

requesting States, as well as in the position of the individual affected by the evidence gathering

action in the requested State. With regards to the accused and his/her defence in the criminal

procedure of the requesting State, they are not given adequate mechanisms which would enable

them to have the same possibilities as the prosecution to affect the outcome of the criminal

procedure when the case involves a transnational dimension. The needs of the accused and

his/her defence to initiate the gathering of evidence abroad, to participate in the gathering of

evidence abroad, or to challenge the use of evidence gathered abroad in the national criminal

procedure of the requesting State is not given enough consideration in this model of cross-border

evidence gathering. The individual affected by the evidence gathering action in the requested

State is not given any direct protection in the mutual legal assistance instruments. His/her

protection is guaranteed only indirectly and is put in the hands of the requested State, by giving it

the possibility to use one of the human rights oriented grounds for refusal of cooperation.

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Therefore, with regards to the mutual legal assistance model of cross-border evidence gathering,

the following general conclusion was made: this model does not achieve the adequate balance

between the interests of actors involved in cross-border evidence gathering in the EU, and does

not provide an adequate legal framework for the achievement of all three equally important

objectives of cross-border evidence gathering in the EU: efficiency of prosecution of

transnational crime, protection of fundamental rights of the individual, and safeguarding the

coherence of internal legal orders of Member States. The primary consideration in this model is

given to the last objective, safeguarding the coherence of the internal legal orders of Member

States, while the other two objectives are not given adequate consideration. This general

conclusion was not brought into question with the further development of the mutual legal

assistance model of cross-border evidence gathering which was undertaken in the legal

framework of the EU, with the adoption of CISA, which contained provisions on improved

judicial cooperation in criminal matters, and the EU-MLA-2000 and its Protocol.

Primarily motivated by the need to improve the effectiveness of prosecution of transnational

crime, a new model of judicial cooperation in criminal matters was developed in the EU. It was

clear that the main obstacle in the process of creating a more efficient system of judicial

cooperation in criminal matters is the differences between the national legal orders of Member

States. Since Member States were reluctant to accept comprehensive harmonization of their

substantive and procedural criminal laws as a satisfying solution, a model of cooperation was

developed which was not based on eliminating differences through harmonization, but on

accepting and recognizing them. This new model is the model of mutual recognition, and instead

of a situation characterizing cooperation in the mutual legal assistance model, where the

requesting State requests the requested State to undertaken the evidence gathering action on the

territory of the latter for the needs of the criminal procedure which is taking place in the former,

the mutual recognition model is characterized by the ordering of the evidence gathering actions

on the territory of another Member State. The Member State where the criminal procedure is

taking place, the issuing State, orders the undertaking of the evidence gathering action on the

territory of the Member State where the evidence is located, the executing State. The

admissibility of the evidence gathering action is evaluated pursuant to the law of the issuing

State, and its form is evaluated pursuant to the law of the requested State. Besides the change of

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paradigm in judicial cooperation in criminal matters in the EU, from requesting to ordering

measures on the territory of another Member State, mutual recognition model is also

characterized by the enhanced stringency in cooperation, and by judicialisation of cooperation.

Introduction of the model of cooperation which is based on the principle of mutual recognition

significantly raised the effectiveness of judicial cooperation in the EU in the area of extradition,

where the traditional extradition system was replaced with the surrender procedure based on the

European Arrest Warrant. On the other hand, the introduction of the principle of mutual

recognition in the area of cooperation in relation to criminal evidence showed itself to be a much

more demanding task. The principle of mutual recognition in the area of criminal evidence was

introduced gradually, it started with the FD FO, continued with the FD EEW, and (for now)

finished with the D EIO. Although introducing the principle of mutual recognition only into a

very limited part of the area of cross-border evidence gathering, both the FD FO and the FD

EEW, produced very little or even no effect. Even though the FD FO was implemented by most

Member States, it is hardly used in practice and the FD EEW was replaced by another legal

instrument, D EIO, even before the deadline for its implementation into the national legal order

expired. The D EIO was adopted only recently, and its implementation into the national legal

orders of Member States and its use in practice is to be expected in the near future.

Instruments of cross-border evidence gathering which are based on the principle of mutual

recognition only partially achieved their objectives. The effectiveness of prosecution of

transnational crime was to be achieved through the strengthening of the position of the Member

State which took responsibility for the prosecution of transnational crime, the Member State

where the criminal procedure is taking place, by enabling it to order the undertaking of the

evidence gathering actions on the territory of all other Member States. Admissibility of the

evidence gathering actions was to be governed by the law of the issuing State, and their form by

the law of the executing State. However, since the introduction of the principle of mutual

recognition was not preceded or followed by the harmonization of national substantive and

procedural criminal laws, adopted instruments that introduced a number of exceptions and

deviations from the concept of mutual recognition. A number of grounds for refusal of

cooperation were introduced, and the executing State is given the possibility to adapt the order

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coming from the issuing State to the demands arising out of its legal order, through the possibility

to have recourse to a different kind of evidence gathering measure than the one indicated by the

issuing State. In order to guarantee the effectiveness of prosecution of transnational crime,

provisions contained in the mutual recognition instruments need to be clear and predictable. Only

through clear and predictable rules will the issuing State achieve security and to the successful

outcome of judicial cooperation. Mutual recognition instruments are characterized by highly

complex rules, the correct interpretation and consequences of which are very difficult to predict.

With regards to the coherence of national legal orders of Member States, the principle of mutual

recognition inherently threatens to disturb the internal coherence of the legal order of cooperating

States, because it raises the possibility for the introduction of decisions coming from other legal

orders into the national legal system. This is especially so in relation to the position of the

executing State, which is obliged to execute an order coming from another Member State, even

though such an order might not be admissible under the national law of the executing State.

However, mutual recognition instruments which apply in the area of cross-border evidence

gathering take into account the position of the executing State by giving it numerous grounds for

refusal of cooperation and providing its competent judicial authorities with the possibility to have

recourse to another kind of investigative measure, different than the investigative measure

indicated in the order emanating from the issuing State.

The introduction of the principle of mutual recognition in the area of cross-border evidence

gathering raised awareness about the importance of the position of the individual in the context of

cross-border evidence gathering. Specific human rights oriented grounds for refusal were

introduced, the individual was recognized with the possibility to initiate the gathering of evidence

abroad, and provisions on legal remedies are contained in all the respective instruments.

However, an individual is not guaranteed any specific rights in the context of transnational

criminal proceedings.

Therefore, in relation to the mutual recognition model of cross-border evidence gathering the

following general conclusion has been made: the mutual recognition model does offer a legal

framework for the increased effectiveness of the prosecution of transnational crime. Since

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adequate level of harmonization of national substantive and procedural criminal laws has not

been achieved, the full potential for the effectiveness of prosecution of transnational crime has

not been “released”. The effectiveness of prosecution of transnational crime has been “sacrificed”

to the safeguarding of coherence of national legal orders of Member States, through the

introduction of the “mitigated” version of mutual recognition in the area of criminal evidence.

The mutual recognition model has also brought an improvement in the understanding of the

position of the individual, but the position of the individual in the mutual recognition legal

framework is still not adequate. Therefore, the principle of mutual recognition does represent an

improvement in the area of cross-border evidence gathering, because it creates a legal framework

where effectiveness of prosecution of transnational crime may be raised, followed by the better

understanding of the position of the individual in the transnational criminal proceedings, and not

losing sight of the need to safeguard the coherence of the national legal orders of cooperating

States.

However, if the principle of mutual recognition is to achieve its full potential, it must be followed

by the comprehensive harmonization of national criminal laws. As the case study undertaken in

the work showed, cooperation based on the principle of mutual recognition is even more deeply

rooted into the national legal orders of Member States than the cooperation which is based on the

mutual legal assistance model. Therefore, a harmonization of national criminal laws is needed,

both substantive and procedural. In the area of procedural criminal law, harmonization needs to

encompass not only fundamental rights of the individual, which is an object of the EU action at

the moment, but also law on gathering and use of evidence in criminal procedure. Only in the

framework of harmonized substantive and procedural criminal laws, the principle of mutual

recognition can achieve its full potential.

Therefore, the further development of the principle of mutual recognition must be welcomed,

with the necessary corollary, the harmonization of national substantive and procedural criminal

laws. The application of the principle of mutual recognition in the area of evidence offers better

perspectives for appropriate balancing of the interests of all the actors involved in the process of

cross-border evidence gathering in EU criminal law.

278

Adequate attention should also be given to other, proposed, models of cross border evidence

gathering in the EU, especially the proposal to establish the Office of the European Public

Prosecutor. Unlike the applied models of cross-border evidence gathering, where the enforcement

of criminal laws is left in the hands of the law enforcement and judicial authorities of Member

States, the proposal to establish the EPPO foresees the creation of a genuine EU prosecution

authority. The idea that raises concern about genuine EU interests, such as the budget, should be

in the hands of an EU institution, which is logical and should be further pursued.

279

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298

299

CURRICULUM VITAE OF THE AUTHOR

Zoran Burić graduated magna cum laude at the University of Zagreb Faculty of Law in 2007. The

same year he started working as junior researcher on the scientific project Criminal Law Aspects

of the Accession of the Republic of Croatia to the European Union at the University of Zagreb

Faculty of Law. From 2009 he is employed as assistant lecturer at the Department of Criminal

Procedural Law at the University of Zagreb Faculty of Law. From 2011 he is the executive editor

of the scientific journal Zagreb Law Review. He has been a researcher in several international

(Bridging the Gap: Civil Society Promoting Access to Justice for Persons with Mental

Disabilities, EuroNeeds, Pre-trial Defence Rights in Criminal Proceedings) and national

(Judgments of the European Court of Human Rights againt the Republic of Croatia in Criminal

Matters) research projects. Currently, he is finishing his PhD with the title Models of Cross-

Border Evidence Gathering in European Union Criminal Law, within the procedure for an

international joint doctorate based on a agreement between the University in Zagreb and

University in Freiburg. He has conducted a significant part of his doctoral research at the Max

Planck Institute for Foreign and International Criminal Law in Freiburg, Germany. He is the

author and co-author of several articles that cover the area of criminal procedural law, European

Union criminal law, and human rights in criminal proceedings.

300

301

SELECTED BIBLIOGRAPHY OF THE AUTHOR

BOOKS

Krapac, Davor; Đurđević, Zlata; Ivičević Karas, Elizabeta; Bonačić, Marin; Burić, Zoran.

Presude Europskog suda za ljudska prava protiv Republike Hrvatske u kaznenim

predmetimaPravni fakultet Sveučilišta u Zagrebu, Zagreb, 2013.

Đurđević, Zlata; Ivičević Karas, Elizabeta; Bonačić, Marin; Burić, Zoran.

Zbirka zakona iz kaznenog procesnog prava, Pravni fakultet Sveučilišta u Zagrebu,

Zagreb, 2013.

BOOK CHAPTERS

Burić, Zoran, Qualitative Report for Croatia, in Pre-trial Emergency Defense,

Assessing pre-trial access to legal advice, Schumann, Stefan; Bruckmüller, Karin; Soyer,

Richard (eds.), Wien-Graz: Intersentia, Neuer wissenschaftlicher Verlag, 2012, 299-304

Burić, Zoran, Europeizacija kaznenog (procesnog) prava, in Kazneno procesno pravo,

Prva knjiga: Institucije, Krapac, Davor (ur.), Narodne novine, Zagreb, 2010, 58-59.

ARTICLES

Burić, Zoran; Hržina, Danka, Pribavljanje i osiguranje dokaza te osiguranje i

oduzimanje imovine i predmeta prema Zakonu o pravosudnoj suradnji u kaznenim

stvarima s državama članicama Europske unije, Hrvatski ljetopis za kazneno pravo i

praksu, 21 (2014) , 2; 355-400

Burić, Zoran, New Croatian Criminal Procedure Act: Europe Says "Yes",

Constitutional Court Says "No", Justice Report, 29 (2014) , 2; 23-24

Burić, Zoran, Obveza izvršenja konačnih presuda Europskog suda za ljudska prava

- u povodu odluke i rješenja Ustavnog suda Republike Hrvatske broj U-

III/3304/2011 od 23. siječnja 2013., Zagrebačka pravna revija - Elektronički časopis

poslijediplomskih studija Pravnog fakulteta Sveučilišta u Zagrebu, 2 (2013), 1; 107-122

Tripalo, Dražen; Burić, Zoran, Položaj neuborojivih počinitelja protupravnih djela u

kontekstu novog hrvatskog kaznenog zakonodavstva, Hrvatski ljetopis za kazneno

pravo i praksu, 19 (2012) , 2; 501-531

Valković, Laura; Burić, Zoran, Primjena izabranih elemenata prava na formalnu

obranu iz prakse Europskog suda za ljudska prava u hrvatskom kaznenom

postupku, Hrvatski ljetopis za kazneno pravo i praksu. Vol. 2 (2011) ; 521-556

302

Burić, Zoran, Položaj žrtve u hrvatskom i makedonskom kaznenom procesnom

pravu kroz prizmu Okvirne odluke o položaju žrtava u kaznenom postupku,

Zbornik Pravnog fakulteta u Zagrebu, 2011, 491-517

Novosel, Dragan; Rašo, Marko; Burić, Zoran, Razgraničenje kaznenih djela i

prekršaja u svjetlu presude Europskog suda za ljudska prava u predmetu Maresti

protiv Hrvatske , Hrvatski ljetopis za kazneno pravo i praksu, Zagreb, 2010, 785-812

Burić, Zoran, Europski uhidbeni nalog, Hrvatski ljetopis za kazneno pravo i praksu,

14 (2007) , 1/2007; 217-266